Rajnish Kumar Rai, Member (A):

Final order was earlier passed in this OA on 26.07.2022 and the respondents preferred Writ Petition before Hon'ble High Court. Hon'ble High Court disposed of the said writ petition and remitted back the matter for re-adjudication since it violated Rule 105 of Chapter XVII of the Central Administrative Tribunal Rules of Practice, 1193. Opportunity was given to both sides of being heard and the matter was reserved.

1. The background of the matter is that the father of the applicant was working as Medical Attendant in the Rourkela Steel Plant and, while in service, he died prematurely on 19.03.1991. As the applicant was a minor at that relevant point of time, the widow, i.e. the mother of the applicant, had sought appointment on compassionate ground. Her case was considered but the same was rejected on the ground of lack of educational qualification. After the present applicant got majority in the year 2000, the widow submitted an application seeking appointment on compassionate ground in favour of the applicant. Alleging non-consideration, the applicant and his mother approached the Hon'ble High Court of Orissa which was subsequently transferred to this Tribunal and renumbered as TA Nos. 10 and 11 of 2013. This Tribunal after considering the matter directed the respondents' authority to consider the representation of the applicant for compassionate appointment in accordance with rules. The respondents considered and rejected the prayer of the applicant and communicated the reason of rejection dated 10.10.2014 vide letter dated 14.10.2014 (Annexure-A/14). Impugning and challenging the said order of rejection, the applicant filed the instant O.A. which was heard and dismissed on 12.12.2017 on the ground of delay and latches. The applicant filed Review Application No. 02/2018, which was disposed of vide order dated 18.09.2019 restoring the Original Application for hearing afresh. The relief sought by the applicant in this O.A. is to quash the order of rejection under Annexure-A/14 dated 10.10.2014 and to direct the respondents to give him appointment on compassionate ground.

2. The sum and substance of the stand of the respondents is that after the death of the employee concerned, the widow applied for employment on compassionate ground. Thereafter, she filed OJC NO. 14981/1996 which was disposed of on 05.07.2000 with liberty to her to exercise option either for employment on compassionate appointment or to take the benefits under employee family benefit scheme. She had exercised option to take employment in her favour, which was considered and rejected as she does not possess the minimum qualification of Matriculation as per the scheme. Subsequently, she submitted application for appointment on compassionate ground in favour of her son, i.e. the applicant, who is a Matriculate. The said request was not agreed to. Being aggrieved, the mother of the applicant had filed OJC No. 17336/2001 and subsequently, the present applicant and his mother filed WP(C) No. 1722/2009 seeking to quash the order of rejection and to direct the respondents to provide employment on compassionate ground in favour of the present applicant. Both the OJC as well as WP(C) were transferred to this Bench and renumbered as TA 10 and 11 of 2013, which were disposed of on 31.07.2014. In compliance of the order of the Tribunal dated 31.07.2014, the case of the applicant was once again considered but the same was rejected in the impugned order on the ground that the direction of the Hon'ble High Court of Orissa in OJC No. 14981/1996 was to consider the request of the mother of the applicant and not for the present applicant and, thus, the rejection of the claim of the applicant is just and proper. It has further been stated that in compliance of the order of Hon'ble High Court of Orissa, opportunity was given to the mother of the applicant to seek benefits under employees benefit scheme but she had chosen not to avail the said benefit in the year 2000. She had insisted for employment in her favour, which was rejected as she was lacking the educational qualification. Subsequently, in the year 2001, she submitted representation for providing employment in favour of her son, the present applicant. Accordingly, by placing reliance on the decision of Hon'ble Apex Court in State of JK & Ors. Vs. Sajad Ahmed Mir, 2006 Lab IC 3988, and LIC of India Vs. A.R.Ambekar, (1994) 2 SCC 718, [LQ/SC/1994/286] respondents submit that the scheme for compassionate appointment prevailing at the time of consideration, i.e. in the year 2014, does not permit entertaining any such request after a lapse of 23 years of the death of the employee. Hence, the case of the applicant was rightly rejected and the result was communicated in a well reasoned order, which needs not interference at this belated stage.

3. Heard. Perused the records.

4. According to Ld. Counsel for the applicant, the scheme formulated by the respondents clearly envisages that it is for the family of the deceased employee either to exercise option to avail the family benefits in lieu of employment assistance or to opt for employment in favour of any dependent family members on compassionate ground. The basic aim and objective of the scheme for providing employment to dependent family members to tide over the financial difficulties being faced for sudden decrease of the income due to the death of the bread earner. It has been contended, as admitted by the applicant, that the Hon'ble High Court did not direct the mother of the applicant to avail the benefit under employee family benefit scheme instead of employment assistance on compassionate ground. Rather, the matter was left open to the mother of the applicant to choose any one of the option available under the scheme and when the mother of the applicant had opted for providing employment under the scheme, the respondent would not have rejected such claim giving a narrow interpretation of the order of the Hon'ble High Court of Orissa. Further contention of the Ld. Counsel for the applicant is that the rejection of the claim of the applicant by applying the scheme prevailing as on the date of the consideration, i.e. in the year 2014, is not sustainable because as per the law laid down by the Hon'ble High Court of Orissa in the case of Chief General Manger Telecom Orissa Circle, Bhubaneswar and another Vs. Anil Kumar Singh and others, W.P.(C) No. 3857/2017, the scheme which was prevailing at the time of death of the employee ought to have been taken into consideration. Further, in order to buttress his stand that the rejection is highly illegal and arbitrary, Ld. Counsel for the applicant has also placed reliance on the decision of the Hon'ble Apex Court in the case of Subhadra Vs. Ministry of Coal and another, 2018 (1) SCC (L&S) 878 and of this Bench in TA 10/2015 disposed of on 07.09.2020 (Fatima Khatun & Ors. Vs. UOI & Ors.). Accordingly, Ld. Counsel for the applicant submitted that there being gross error in the decision making process, the applicant is entitled to the relief claimed in this O.A.

5. On the other hand, Ld. Counsel appearing for the respondents has heavily stressed upon the points that appointment on compassionate ground is not an alternative mode of employment. No one can claim such appointment as a matter of right and dehors the rules. As the family of the deceased employee survived for 23 years after the death of the employee concerned, providing employment on compassionate ground at such a distance place and time would be against the law. Accordingly, respondents by reiterating the stand taken in the counter as discussed above, have prayed for dismissal of this O.A.

6. Learned counsel for the respondents submitted that this OA is barred by limitations since the employee died in the year 1991 and the son has claimed for compassionate appointment for the first time in the year 2007 that is after 16 years from the date of death of his father which has been held impermissible by Hon'ble Apex Court in the case of State of UP vrs Paras Nath 1998 2 SCC 412) [LQ/SC/1998/61] . It is submitted that compassionate appointment is not a continuous cause of action as per law laid by Hon'ble Apex Court in the case of Sanjay Kumar vrs State of Bihar2000 7 SCC 192) [LQ/SC/2000/1281] , hence the representation of the applicant cannot be considered on that ground. He further submitted as per decision of Hon'ble Apex Court in the case of Fertilizers and Chemicals Travancore Ltd. & Ors. Vs. Anusree K.B no appointment can be provided on compassionate ground after lapse of 30 years from date of death of the employee. It is further contended on by the learned counsel for the respondents that the case of the applicant also cannot be considered not on the basis of previous scheme which was in force at the time of date of death of the employee but as per the scheme in vogue at present as per the law laid down by Hon'ble Apex Court in the case of Bank of India vrs Rajkumar 2010 11 SCC 661) [LQ/SC/2010/175] .

7. On the other hand learned counsel for the applicant submitted that the present applicant was only 10 years old at the time of death of his father and after he attained date of majority and acquired the qualification, his mother had on 02.04.2001 applied for compassionate appointment in his favour since she did not had the required qualification and her case was rejected on that ground. She had also filed OJC No. 17336/2001 in that respect. It is submitted that another representation dated 11.02.2005 was also filed for compassionate appointment by mother for the applicant. Thereafter the applicant filed WP C No. 17222/2009. Both the OJC and WP was transferred from Hon'ble High Court to this Tribunal and numbered as TA No. 11 & 10 of 2013. This Tribunal vide order dated 31.07.2014 had disposed of both the TA vide common order and directed the respondents to consider the case of the applicant. The respondents vide order dated 14.10.2014 had rejected the claim and instant OA was filed. Therefore there is no ground of delay.

8. It is seen that the mother of the applicant had requested for compassionate appointment for self on 02.04.1992. After direction from Hon'ble High Court in OJC No. 14981 of 1196 on 05.07.2000, respondents asked for production of matriculation certificate. Since mother of the applicant did not had the required qualification she had made representation for grant of compassionate appointment for her son on 02.04.2001. The applicant attained age of majority in the year 1999, therefore this Tribunal does not find that there is any attributable delay on the part of the applicant for approaching appropriate forum raising his grievances and therefore there is no delay in considering his case. As far as the stand of the respondents in considering the case of the applicant as per prevailing scheme is concerned, the citations relied on by learned counsel for the respondents is not applicable in the view of subsequent decision of Hon'ble Apex Court in the case of Secretary, Department of Education versus Bheemesh Alias Bheemapa (Civil Appeal No. 7752 of 2021 disposed of on 16.12.2021) where it has been held that scheme/guidelines prevalent at the time of death of the employee should be taken into consideration by the CRC for grant of compassionate appointment.

9. Before proceeding to deal with the merit of the matter, it is apt to take extract of the relevant portion of the decision of the Hon'ble Apex Court in the case of Balbir Kaur Vs. Steel Authority of India Ltd., Appeal (Civil) Nos. 11881 & 11882 of 1996 as under:

"14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood.

15. Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated:

Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural levels. Everything that comes in the way will have to be removed gently, if possible; forcibly if necessary, and there seems to be little doubt that coercion will often be necessary.

These were his prophetic words about three decades back. More than a quarter of century has run out since he left us but there has yet been no percolation in adequate dose of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote:

The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did but only the words were abolished, not the thing.

Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book. The benefits have not yet reached the common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami:

It is imperative that all this various yogas should be carried out in practice. Mere theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and meditate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self. By means of an intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or acknowledging. It is the whole souls becoming changed into what it believes. That is religion.

As a matter of fact the constitutional philosophy should be allowed to become a part of every mans life in this country and then only the Constitution can reach everyone and the ideals of the Constitution framers would be achieved since the people would be nearer the goal set by the Constitution - an ideal situation but a far cry presently.

Unfortunately, the High Court has completely lost sight of this aspect of the matter.

Turning on to the factual aspects once again, it is not that compassionate appointments have never been effected. Steel Authority of India was in fact providing compassionate employment to one dependent of an employee dying in harness or permanently disabled. As a matter of fact on 22nd September, 1982 the respondent-Steel Authority, further issued the Circular pertaining to appointments on compassionate grounds. The Circular however for the first time introduced categorisation of compassionate employment as First Priority Cases; Second Priority Cases and Third Priority Cases. The Circular reads as below:

The system of compassionate appointments was reviewed in a meeting of the Advisory Committee recently. On the lines of the discussions, the system may be operated in future as given below:

1. First Priority Cases

(a) Employment of a dependent of an employee who dies owing to an accident arising out of and in the course of employment;

(b) Employment of a dependent of an employee who dies in a road accident while on duty or while coming to or going back from duty.

The existing practice will continue.

2. Second Priority Cases i.e. employment of a dependent of an employee whose services are terminated in accordance with order 23 of the Standing Orders, i.e. on his being found permanently medically unfit for his job by the Director M&HS.

(a) Dependents of only those employees would be considered for employment on compassionate grounds whose services are terminated on the ground of being declared permanently unfit for their job before they enter 56th year of age, that is, they have a balance of at least three years of service.

(b) The minimum period of service of the employer, whose dependent is to be considered for employment, will be 10 years, as against 5 years under the existing rules.

3. Third Priority Cases i.e., Cases of death for reasons not covered under (I) above. The existing rules will continue.

The above will be subject to the following general conditions:

(i) The eligible dependents for consideration for such employment would continue to be wife/husband/son/daughter.

(ii) No employment would be provided to a second dependent, i.e., if the husband/wife or a son/daughter of the deceased or of the employee whose services are terminated on his being found medically unfit is already in employment of RSP, no employment will be provided to another dependent.

(iii) The employee covered under the 2nd and 3rd priorities-

(a) should not have been awarded a major punishment during the last 5 years of their service and

(b) should have at least good grading in the CCR for the last 3 years This has the approval of the Managing Director.

The requirement of such an insertion in the body of the judgment was felt expedient by reason of the introduction of the priorities and in any event special reference may be made to clause 7.16 of the Circular which expressly records cases of death for reasons not covered under (I) above and in that event the existing rules will continue. The existing rules as a matter of fact were not prohibitive of such compassionate appointments but lend affirmation to such appointments. Mr. Bhasme, learned Advocate appearing for the Steel authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management, could avail of the scheme by depositing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr. Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr. Bhasme, contended that consequently on deposits as above, with the management, the employees family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the Employees Union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation. It is significant to note that the Employees Provident Fund & Miscellaneous Provisions Act of 1952 is a beneficial piece of legislation and can amply be described as social security statute, the object of which is to ensure better future of the concerned employee on his retirement and for the benefit of the dependants in case of his earlier death. As regards the provisions of the Payment of Gratuity Act, 1972 (as amended from time to time) it is no longer in the realm of charity but a statutory right provided in favour of the employee. Section 4 of the Act is of some significance and as such the same is set out herein below:

4. Payment of gratuity. (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -

(a) on his superannuation, or (b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease;

Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:

[Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.] It is upon consideration of the above noted provisions of Section 4, it was contended that question of compulsory depositing of the gratuity amount does not and cannot arise. We shall come back to the deposit of the Provident Fund but as regards the Gratuity amount, be it noted that there is a mandate of the statute that Gratuity is to be paid to the employee on his retirement or to his dependants in the event of his early death the introduction of Family Pension Scheme by which the employee is compelled to deposit the Gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1972). The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs of the nominees of the concerned employees but by the introduction of the Family Pension Scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adaptation of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not. Adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a statute and this statutory obligation cannot possibly by deferred in the event of an untimely death of a worker or an employee. As noticed above, the family needs the money in lump-sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a buffer to the retirement of or on the death of an employee. Situations are not difficult to conceive when the family needs some lump- sum amount but in the event of deposit of the same with the employer, the heirs of the deceased employee could be put into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise.

In any event as appears in the contextual facts, the NJCS Agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writ petition.

On the wake of the aforesaid, we do feel it convenient to record that the option should have been made available either to have a compassionate appointment provided, however, the deceased employees representative is otherwise competent to hold the post or the adaptation of the family pension fund by way of deposit of provident fund and gratuity amounts. In fact, however, there was no option taken from the employees, at least no records have been produced therefor, neither any submissions made in that regard. Mr. Bhasme, further pointed out that though the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent is likely to open a pandoras box, since in the huge empire of the respondent, several such cases would be existing which would have to be reconsidered. Mr. Bhasme further contended that family members of large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the concerned employee. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Respondent pointed out that the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whichever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction.

The learned Advocate appearing in support of the appeal very strongly contended that as per appellants information the respondent Steel Authority of India is in fact providing compassionate employment even now to one dependant of an employee dying in harness or permanently disabled. We are however not inclined to go into the issue on this score.

In that view of the matter these appeals succeed, the order of the High Court stands set aside. Steel Authority of India is directed to consider the cases of compassionate appointments in so far as the appellants are concerned. There shall be no order as to costs.

10. It is seen that this Bench of the Tribunal disposed of the TA Nos. 10 and 11 of 2013 on 31.07.2014 directing the respondents to consider the pending representation of the applicants for providing employment on compassionate ground within a stipulated period after observing that the respondents while considering the case of the applicant should also take into consideration the financial condition of the family but as it appears that the respondents rejected the representation without whispering anything about the financial condition of the family although it is the specific case of the applicant that the family is still in indigent/penurious condition. Further, it is seen that the respondents rejected the case of the applicant by applying the rule prevailing on the date of consideration which is found not in accordance with law laid down by the Hon'ble High Court of Orissa (supra). Further, it is seen that the delay has been weighed much in the mind of the authority concerned without considering the fact that the applicant and his mother have been vigilant in pursuing the matter whereas the delay ought not to have been acted as an hindrance. In view of the discussions made above, the irresistible conclusion is that the respondents rejected the grievance of the applicant in an arbitrary manner, which cannot pass the litmus test of judicial scrutiny. Accordingly, the impugned order dated 10.10.2014 communicated vide letter dated 14.10.2014 (Annexure-A/14) is hereby quashed and the matter is remitted back to the authority to consider the case of the applicant for compassionate appointment as per the rules prevailing at the time of death of the employee concerned and taking into account the indigent condition of the family.

11. O.A. is allowed to the extent stated above. No costs.