No. Fin-F-( A )- ( 16 )-1/2013 Government of Himachal Pradesh Finance Department ( Expenditure Control - II )

Transcription

1 PERSONAL ATTENTION No. Fin-F-( A )- ( 16 )-1/2013 Government of Himachal Pradesh Finance Department ( Expenditure Control - II ) From To The Principal Secretary (Finance) to the Government of Himachal Pradesh, SHIMLA - 2. All the Administrative Secretaries to the Government of Himachal Pradesh, SHIMLA -2. Dated: Shimla , the 18 th July, Subject Compassionate appointment: Filing of appeals in cases where directions have been issued for not taking family pension as part of annual income of the family. Sir/ Madam, This is in reference to the recent series of decisions of Hon'ble High Court in which it has been directed for giving employment to the dependant of the deceased Government servant without taking the pension being received by the family of the deceased, as part of their income. In giving this decision, the Hon'ble High Court relied on the decisions of Hon'ble Supreme Court in Govind Prakash Verma vs LIC of India and others (2005)10 SCC 289, Smt Phoo/wati vs Union of India AIR 1991 SC 469 and Sanjay '-' 2f ~.

2 - -. Q.. kumar vs SBI and others 2007 (2) Shim/a Law cases 449. In all these cases the Hon'ble Court hadheld that whtle calculating income for the purpose of providing compassionate appointment, the retirement benefits including pension, which the deceased's family gets shouldnot be taken into account. However, in this regard following facts need a special mention: (1) The compassionate appointment violates the principal of equality of opportunity enunciated in the constitution. Under this the appointment is given to a legal heir without any open competition and hence there is compromise of merit. However, the compassionate appointment is a concession and not a right; hence, if any compassionate appointment is to be made the same has to be provided for in the policy/ rules framed specifically for this purpose. This has been held by the Hon'ble Supreme court in so many cases and the important of these are; Union of India Vs Shashank Goswami and another, AIR 2012 SC 2294, State of U.P. and others vs Pankaj Kumar Vishnoi ( CA no of 2011, GM State Bank of India vs Anju Jain (2008) 8 SCC 475, Umesh Nagpa/ vs State of Haryana (1994) 4 SCC 138. (2) It is a/so notable that the decisions pronounced in Govind Prakash Verma vs LIC of India and others (2005)10 SCC 289, and Sanjay kumar vs SBI and others 2007 (2) Shimla Law cases, which the Hon'ble High court has relied, were both related to individual Companies/ Corporate bodies and in those corporate, bodies the policy for compassionate appointment did not provide that the pension income is to be taken into account for ass~ssing indigence. As such these are judgments in personem and should not be made applicable to all. -. ~J :..J, _..

3 - ~. 3 ". (3) Further, these directions of Hon'ble Highcourt also go against the latest pronouncement of Hon'ble Supreme court in Union of India Vs Shashank Goswami and another, AIR 2012 SC In that case the Hon'ble Supreme court observed as follows: "Compassionate appointment can't be claimed as of right. It is not another source of recruitment--. The claim for such appointment has to be considered in accordance with rules, regulations or administrative instructions, taking into consideration financial conditions of the family of the deceased. The Hon'ble Supreme court upheld the decision of the Government wherein it rejected the claim for compassionate appointment when the total retirement benefits and the pension taken together went beyond the ceiling fixed by the government in the scheme for compassionate appointment. It is a recognized norm that the latest precedence overrules the old ones and accordingly must be followed in all cases. (4) In para 10 of the instructions regarding compassionate I, appointment issued by the Department of Personnel Government of Himachal Pradesh dated following provisions are contained: 10) Selective approach: a)except as provided in Para 7(c) above, the appointments on compassionate grounds should be made in such a way that persons appointed to the posts do have the essential educational and technical qualifications and experience requirements maintenance ofefficiency ofadministration. b) ~..L/-I,,,

4 . LJ,... t c) The provision of employment assistance was introduced in 1958 and since then a number of welfare measures have been introduced by the Govt. which made significant difference in the financial position of the families or the Govt. servants dying in harness. The benefit received by the family on account of these measures may be kept in view while considering cases of employment assistance.on compassionate grounds. Such measures, in brief which are at present available to the famtlies of the deceased employees are as under: (t) (it) (lit) Adhoc ex-gratia 10 times the emoluments which the Government servant was receiving before death subject to a minimum ofrs. 10,000/- and maximum ofrs. 30,000/-. Grant ofimproved famtly pension. Grant ofdeath Gratuity as under: Lenqth of service a) Less than one year Rate of qratuity 2 times ofemoluments (b)one year or more but less than 5 years 6 times ofemoluments. c)5years or more but less than 20 years. 12 times ofemoluments. d)20 years or more Half of emoluments for every completed six monthly period of qualifying service subject to a maximum of 33 times emoluments provided that the amount of Death Gratuity shall in no case, exceed one lakh rupees.... ri ~ 1-..

5 ~ " (~ --> (iv) Employees Group Insurance Scheme:- Financial assistance to the family of the deceased Government servant as under:- (t) Class-IVemployees - Rs.l0,000/- (it) Class-III employees Rs.20,000/- (iit) Class-II employees- Rs.40,000/- (iv) Class-I employees - Rs.80,000/- (v) In addition nearly 2/yd of the amount contributed by the Government servant to the fund is also payable along with the above amounts. (vt) Encashment of the leave at the credit of the deceased Govt. servant subject to the maximum of 240 days. (vit) Entitlement of additional amount equal to the average balance in the GPF of the deceased Govt. servant during the three years immediately preceding the death of the subscrtber subject to certain condition under the Deposit Linked Insurance Scheme. The above provisions show that the policy enunciated by the State of H.P. from the very initial stage has been following the norm that compassionate appointment is to be given only in indigent circumstances and that it is not a matter of right. The policy not only specifies that pension is to be counted as part of income but also provides which variables other than pension are to be included in income. A joint reading of these provisions with the judgment of Hon'ble Supreme court in Shashank Goswami's case makes it clear that compassionate appointment is to be given only when the conditions prescribed for the same in the policy or rules are fulfilled. As our policy ~ ~ 61-

6 provides for including family pension In annual income of the' family, the ratio of Govind Prakash Verma vs LIe of India and others (2005)10 see 289 or that of Smt Phoolwati vs Union i of India AIR 1991 se 469 and Sanjay kumar vs SBI and others 2007 (2) Shimla Law cases 449 are not applicable in the context of compassionate appointments in H.P. Government. Here it is also relevant to mention that the income limit for being in the Below Poverty Line list roughly comes to around Rs 30,000 and that for claiming the pension under the scheme being implemented by the Social Justice and Empowerment department, it is Rs per annum. Both these limits are far below the income criterion of Rs 1,25,000 fixed by the Government at present. If even the pension is not taken int? account in the annual family income, then the same will tantamount to being unjust to those who have little or no means of subsistence. (5) Furthermore, the above mentioned policy provides for compassionate appointment even when the death is pue. to natural reasons and not accidental. To that extent, if compassionate appointment is made aright, the Government jobs will become hereditary which can be never be the intention of the framers of this policy. These days due to finan~ial constraints, not much recruitment is taking place; h~!1ce I ;. l protecting the interests of the direct recruits, the polky mentioned above also provides that the maximum posts which can be filled up through compassionate employment in. a I department will not exceed 5/0 of the total vacant posts. Therefore, as and when a direction for giving compassionate appointment to a claimant without counting the family pension as income comes to your for, notice in relation to your department, -..,/., -..

7 . ~.'. you are requested to immediately take steps for filing ;of appeal. This may be treated as most urgent please. Yours faithfvlly, ~. Special Secretary (Finance) to the Government of Himachal Pradesh, SHIMLA - 2. Endst No. As above. Dated Shimla , the 18 th July, Copy to the Advocate General, Himachal Pradesh, with the request to bring the above facts into the kind notice of the Hon'ble High Court whenever the cases related to compassionate appointment are taken up for hearing by the Hon'ble High-Court. & Special Secretary (Finance) to the Government of Himachal Pradesh, SHIMLA - 2.