Bsnl, Rep.The Chairman Cum M.D. & Others v. M.Leelakutty And Another
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 8TH DAY OF JULY 2015/17TH ASHADHA, 1937 OP (CAT).No. 76 of 2010 (S) ---------------------------- AGAINST THE ORDER/JUDGMENT IN TA 106/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 22-01-2010 PETITIONERS :
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1. BHARAT SANCHAR NIGAM LIMITED, REPRESENTED BY THE CHAIRMAN CUM MANAGING DIRECTOR, NEW DELHI 110001.
2. THE CHIEF GENERAL MANAGER, TELECOM, THIRUVANANTHAPURAM.
3. DEPUTY GENERAL MANAGER (ADMN), BSNL, THIRUVANANTHAPURAM-33.
4. THE GENERAL MANAGER (TS) & CPIO, OFFICE OF CGM, BSNL, KERALA CIRCLE, THIRUVANANTHAPURAM.
5. THE GENERAL MANAGER, TELECOM, BSNL, KANNUR-2.
BY ADV. SRI.K.KESAVANKUTTY, SC, BSNL RESPONDENTS:
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1. M.LEELA KUTTY, W/O.M.KRISHNAN, 'MADIKUNNUMMA HOUSE, P.O.PILICODE, KASARGOD DISTRICT.
2. SOUMYA MULLERI , D/O.M.KRISHNAN, MADIKUNNUMMA HOUSE, P.O.PILICODE, KASARGOD DISTRICT. R1 & R2 BY ADV. P.V.MOHANAN THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 08-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 76 of 2010 (S) APPENDIX PETITIONERS' EXHIBITS :- EXT.P1 :
COPY OF W.P.(C)No.17973/2008 (T.A.No.106/2008) ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.P2 :
COPY OF THE COUNTER AFFIDAVIT IN W.P.(C) No.17973/2008 (T.A.No.106/2008) ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.P3 :
COPY OF THE ORDER DTD.22.1.2010 IN T.A.No.106/2008 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.P4 :
COPY OF THE LETTER DTD.27.6.2007 OF THE CORPORATE OFFICE OF BSNL, NEW DELHI ISSUED TO ALL HEADS OF TELECOM CIRCLES.
EXT.P5 :
COPY OF THE BSNL C.O.LETTER NO.268-79/2002 PERS.IV DTD.27.12.2006.
EXT.P6 :
COPY OF THE LETTER DTD.29.4.06 SUBMITTED BY THE PETITIONER.
EXT.P7 :
COPY OF THE CHECK LIST.
EXT.P8 :
COPY OF THE PROMISSORY BENEFIT SANCTIONED BY THE ACCOUNTANT GENERAL, KERALA.
RESPONDENTS' EXHIBITS :- NIL.
True copy P.A to Judge
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. ------------------------------------------------------------------ O.P.(CAT) No.76 of 2010 ------------------------------------------------------------------ Dated this the 8th day of July, 2015
JUDGMENT
P.R.Ramachandra Menon, J.
Correctness and sustainability of Ext.P3 order passed by the Tribunal, setting aside the order passed by the petitioner/BSNL on considering the application preferred for granting compassionate appointment under the Scheme of 2007 and directing the matter to be considered under the 'Old Scheme' with reference to the date of death of the employee concerned, is the subject matter of challenge.
2. The husband of the 1st respondent and father of the 2nd respondent, who was working as a Regular Mazdoor, took his last breath on 14.08.2001. At that point of time, the 2nd respondent was a minor and after attaining majority, an application was submitted for compassionate appointment under the existing scheme/norms, on 22.11.2005. The eligibility was considered by the BSNL only much later and by this time, a new scheme was introduced on 27.06.2007, which envisages a weightage system,
whereby a minimum requirement was stipulated to be satisfied so as to fix the indigence. As per the said scheme, only persons who scored a minimum of '55' were to be declared as indigent and to be appointed under the compassionate appointment scheme. In the case of the 2nd respondent herein, the High Power Committee constituted by the BSNL to consider the traits/credentials in accordance with the said scheme of 2007 found that the 2nd respondent could score only '42' points, which was much below the cut off minimum of 55. It was accordingly, that the request for compassionate appointment was turned down as per Ext.P1 order dated 20.02.2008, which was sought to be challenged by the respondents herein by filing W.P.(C). No.17973/2008.
3.
In the course of time, the writ petition came to be transferred to the Central Administrative Tribunal, where it was numbered as T.A.No.106/2008. The main challenge raised from the part of the respondents was that the right to be considered for compassionate appointment had accrued on the date of death and as such, there was absolutely no rhyme or reason for the
employer/BSNL to have it considered with reference to the norms prevailing on the date of consideration of the application. Reliance was also sought to be placed on the verdict passed by the Apex Court reported in State Bank of India v. Jaspal Kaur [2007(9) SCC 571] and some other cases as well including State Bank of India v. Vikas Dubey [2007(9) SCC 579]. After hearing both the sides, the Tribunal observed that, by virtue of the law declared by the Apex Court as per Jaspal Kaur's case (supra), the stand of the BSNL was liable to be intercepted. It was declared by the Tribunal that the applicant had to be considered with reference to the pre-revised scheme/norm which was prevailing on the date of application. It was accordingly, that Ext.P1 order passed by the BSNL was set aside and the matter was directed to be reconsidered, which came to be challenged by filing the Original Petition, at the instance of the BSNL.
4. During the course of hearing, it is brought to the notice of this Court that diverging views were being expressed as to whether the 'date of death' was the relevant one to be considered
or the 'date of consideration of the application'. A Division Bench of this Court as per order dated 17.02.2012 in OP(CAT). No.458/2010 and connected cases made a reference to a Full Bench for resolving the issue. Pursuant to the reference, the matter was considered by a Full Bench of this Court and a common order was passed on 19.01.2015 which stands reported in Bharat Sanchar Nigam Ltd. Vs. Rajesh 2015 (2) KLT 478, as per which it has been held that the crucial date that has to be considered is the date of consideration of the application and not by the date of death.
It has been held that the verdicts passed by the Supreme Court in Jaspal Kaur's case (supra) and Vikas Dubey's case (supra) sought to be relied on from the part of the aspirants could not be held as authorities for the proposition that the case of an applicant will have to be considered against a scheme which was in force at the time of death of the employee. Reliance was sought to be placed by the Full Bench on the law declared by the Apex Court in State Bank of India and another v. Raj Kumar [2010 (11) SCC 661].
considered by the concerned Bench and hence this matter stands listed before this Court today.
5. After hearing both the sides, this Court finds that, there is no dispute on facts and the main ground raised in the writ petition and pressed before the Tribunal was with reference to the applicability of the 2007 scheme i.e., whether the old scheme was to be made applicable or the new scheme. The only other ground as pointed out by the learned counsel is with regard to the indigence of the writ petitioners as projected in the Ground 'C' and 'D' of the writ petition. But since the legal position has been made clear by the Full Bench, the matter has to be considered only in terms of the new scheme, i.e., 2007 scheme. This exercise has already been done by the High Power Committee, who, after analysing the facts and figures has held that the applicant could secure only a score of '42'. Having not secured the minimum of '55', she was found as not eligible to be declared as indigent and to extend the benefit of compassionate appointment.
6.
It is brought to the notice of this Court by the learned counsel appearing for the respondents that there is another judgment by a Division Bench of this Court in Bharat Sanchar Nigam Ltd. Vs. Tittin [2011 (4) KLT Pg.409], whereby it has been declared that the relevant date for consideration is the date of death. It is also stated that the said judgment was sought to be challenged by the aggrieved party before the Supreme Court by filing SLP, wherein interference has been declined and the SLP has been dismissed as per order dated 18.2.2015. A copy of the said order is placed for perusal of this Court. The order dated 18.2.2015 passed by the Supreme Court is in the following terms:- "Delay, if any, condoned in filing special leave petitions.
Dismissed.
However, the question of law sought to be raised in these petitions is kept open."
7.
From the above, it is very much clear that the Apex Court, at the time of dismissal of the SLP, did not go into the merits of the case and as such, there is no merger with the decision rendered by the Division Bench of this Court, nor could it
be said that the view expressed by the Division Bench in Bharat Sanchar Nigam Ltd. Vs. Tittin [2011 (4) KLT Pg.409] has got the approval of the Supreme Court merely because of the dismissal of the SLP.
8.
It is further brought to the notice of this Court that, the Apex Court, as per subsequent judgment reported in Canara Bank Vs. Mahesh Kumar [2015 (2) KLT SN 109 (C.No.128) SC] has held that, the claim for compassionate appointment under the scheme of a particular year cannot be decided in the light of any subsequent scheme that came into force much after the claim. The crux of the factual position discussed therein appears to be that, there was a scheme earlier, which came to be changed by introduction of 'ex gratia' payment, in lieu of compassionate appointments in the year 2005. The bank considered the eligibility of the person concerned in respect of death occurred on 10.10.1998 much later and the same was sought to be denied stating that there was no sustainable ground under the changed circumstances. The Apex Court also observed that the '2005 scheme' providing only for 'ex gratia' payment in lieu of
compassionate appointment stands superseded by the scheme of 2014, which has virtually revived the scheme providing for compassionate appointment. As on date, the scheme in force was to provide compassionate appointment, and under such circumstance it was held that the appellant/Bank was not justified in contending that application for compassionate appointment of the respondent could not be considered because of passage of time. The factual position in the present case stands entirely on a different pedestal. The impact of the verdicts passed by the Apex Court as per the decisions rendered at different points of time has been discussed by the Full Bench of this Court with reference to the factual situation prevailing in the BSNL, holding that the matter had to be considered with reference to the new scheme of 2007 and not with reference to the pre-revised scheme. The said decision is binding upon this Court and as such, this Court does not find any reason to accede to the relief sought for from the part of the Writ Petitioners/applicants before the Tribunal.
In the above circumstances, this Court finds that the challenge raised by the BSNL against the order passed by the Tribunal requires to be upheld. Accordingly Ext.P3 order passed by the Tribunal stands set aside, restoring Ext.P1 order passed by the BSNL. It is declared that there is no merit in the writ petition filed by the respondents (subsequently came to be transferred as T.A.No.106/2008) and the same stands dismissed accordingly. P.R.RAMACHANDRA MENON, JUDGE ANIL K.NARENDRAN, JUDGE jv/skj