Smt. Sowmya a N Vs the General Manager

DEPUTY GENERAL MANAGER THE NEW INDIA ASSURANCE COMPANY LTD REGIONAL OFFICE: 2-B UNITY BUILDING, ANNEXE P KALINGA RAO ROAD (MISSION ROAD) BANGALORE -560 027

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NC: 2026:KHC:23092 WP No. 21500 of 2023

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HC-KAR

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THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE COMPANY LIMITED TUMKUR DIVISION WARD NO. 8 GENERAL CARIAPPA ROAD OPPOSITE SRI. RAMA MANDIR TUMAKURU KARNATAKA -572 101

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…RESPONDENTS

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(BY SRI. ANUP SEETHARAM RAO, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ENDORSEMENT DTD 17.08.2022 ISSUED BY THE RESPONDENT 2 VIDE ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, the petitioner seeks the following relief's:

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“a) To issue a writ of certiorari, setting aside the Endorsement dated 17.08.2022 issued by the Respondent 2 vide ANNEXURE-A vide bearing No.Ref:BRO67/HRM/CA/2022; and

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b) Consequently, to issue Writ of Mandamus directing the Respondent 2 to appoint the Petitioner in the Respondent Company on the basis of compassionate grounds in lieu of her father’s death on 03.09.2021 pursuant to her application dated 18.11.2021 vide ANNEXURE-C; and

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c) to pass such other orders as this Hon’ble Court deems fit in the facts and circumstances of the present case.”

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A perusal of the material on record will indicate that the

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petitioner is the daughter of late Narayan Gowda A N who was working as First Division Clerk in the respondent insurance company as on 03.09.2021 when he expired leaving behind his wife Smt. T Bharathi and the petitioner and one more daughter to succeed his estate as his heirs and legal representatives. On 18.11.2021, the petitioner filed an application seeking appointment on compassionate ground which came to be rejected by the respondent by stating that the petitioner was married and as such she did not fall under the dependent category so as to entitle her to seek compassionate appointment. Aggrieved by the impugned

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communication at Annexure-A dated 17.08.2022 declining to grant compassionate appointment in favour of the petitioner, she is before this Court by way of the present petition.

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Per contra , the respondents have filed their statement of objections controverting the claim of the petitioner along with the scheme of compassionate appointment formulated by the respondent insurance company and produced as Annexure-R1 along with the statement of objections.

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Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.

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Before adverting to the rival contentions, it is necessary to extract the impugned communication at Annexure-A as under:

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“Ref: BRO67/HRM/CA/2022

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Date: AUGUST 17, 2022

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MS SOWMYA A N D/O LATE MR NARAYANA GOWDA A N 'SHWETHA-SOWMYA' 2^ND CROSS 34D MAIN SHANTHINAGAR TUMKUR

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NC: 2026:KHC:23092 WP No. 21500 of 2023

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HC-KAR

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Madam,

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Reg: Request for appointment on Compassionate Ground

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We take reference to your letter dated August 10, 2022 addressed to Divisional Manager, Tumkur Divisional Office672500 received by us on 16/08/2022, requesting for status of the appointment under Compassionate Ground.

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As per the Scheme for Compassionate Appointment in PSGIC under Para No. 2-2.3 "Wholly dependent daughter" only is eligible to apply under Compassionate ground. On verification of application submitted by you for appointment under Compassionate ground, it is noted that under PART 'A" - II (d) your Marital Status is mentioned as "Married" and as such you are not falling under "Dependent Category"..

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In view of the above referred facts, we express our inability to consider your application for appointment under Compassionate ground.

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SREEDEVI S DEPUTY GENERAL MANAGER”

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It is also relevant to extract the scheme for

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compassionate appointment issued by the respondents-insurance company at Annexure-R1 as under:

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“THE NEW INDIA ASSURANCE COMPANY LTD. (Wholly Owned by Govt of India) Regd. & Head Office: New India Assurance Bldg,

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87, M G Road Fort, Mumbai-400001

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SCHEME FOR COMPASSIONATE APPOINTMENT IN PUBLIC SECTOR GENERAL INSURANCE COMPANIES,

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1 COVERAGE

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1.1 To a dependent family member of permanent employee of a Public Sector General Insurance Company (PSGIC) who-

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(a) Dies while in service (including death by suicide)

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OR

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(b) Is retired on medical grounds due to incapacitation before reaching the age of 55 years.

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(Incapacitation is to be certified by a duly appointed Medical Board in a Government Medical College / Government District Head Quarters Hospitals / Panel of Doctors nominated by the Company for the purpose).

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1.2 For the purpose of the Scheme, "employee" would mean and include only a confirmed regular employee who was serving full time or part time on scale wages, at the time of death retirement on medical grounds, before reaching age of 55 years and does not include any one engaged on contract/temporary/ casual or any person who is paid on commission basis.

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2 DEPENDENT FAMILY MEMBER

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2.1 Spouse, or

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2.2 Wholly dependent son (including legally adopted son), or

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2.3 Wholly dependent daughter (including legally adopted daughter); or

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2.4 Wholly dependent brother or sister in the case of unmarried employee

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3 … AUTHORITY COMPETENT TO MAKE COMPASSIONATE APPOINTMENT

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3.1 Chairman cum Managing Director;

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3.2 General Managers holding current charge of Chairman & Managing Director

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3.3 Board of Directors in Special types of cases.

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3.4 While dealing with proposals for appointment on compassionate grounds in otherwise eligible cases, where disciplinary action was pending against deceased employee/ employee retired on medical grounds or if the deceased employee was involved in serious financial irregularities, embezzlement of funds, committing frauds etc., the Company will continue to abide by the guidelines issued by the Government of India, requiring consideration and decision in each case by the Board of the Company/Authority appointed by the Board.

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4 POSTS TO WHICH APPOINTMENTS CAN DE MADE

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The appointment shall be made in the clerical and sub-staff cadre only

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5 ELIGIBILITY

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5.1 The family is indigent and deserves immediate assistance for relief from financial destitution, and

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5.2 Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.

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6 EXEMPTION

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6.1 Compassionate Appointment under Scheme are exempted from observance of the following requirements:

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6.1.1 Normal Recruitment Procedure i.e., without the agency of selection like IBPS/Employment Exchange, Recruitment Board of the Company etc.

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6.1.2 The ban orders on filling up of posts issued by Government of India or any controlling authority.

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7 RELAXATIONS

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Upper age limit could be relaxed wherever found to be necessary. The lower age limit should, however, in no case be relaxed below 18 years of age.

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(Note 1 - Age eligibility shall be determined with reference to the date of application and not the date of appointment;

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Note 2 - Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of age limit also for making such appointment).

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8 TIME LIMIT FOR CONSIDERING APPLICATIONS

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The scheme comes into force prospectively from 01st November, 2014. Application for employment under the Scheme from eligible dependent should normally be considered up to five years from the date of death or retirement on medical grounds laking place on or after 01st November, 2014 and decision to be taken on merit in each case.

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9 DETERMINATION /AVAILABILITY OF VACANCIES

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9.1 Appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available.

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9.2 Compassionate appointment can be made up to a maximum of 5% of vacancies falling under direct recruitment quota in clerical cadre or vacancies identified in the Sub-Staff category. The company may hold back 5% of vacancies in the aforesaid categories to be filled by appointment on

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compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against appropriate category, viz, SC/ST/OBC/ General Category, depending upon the category to which he/she belongs.

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9.3 Widow appointed on compassionate ground upon remarriage will be allowed to continue in service, even after re-marriage.

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10 WHERE THERE IS AN EARNING MEMBER

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10.1 In deserving cases, even when there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with the prior approval of the competent authority of the company who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified, having regard to the number of dependents, assets and liabilities left by the employee, income of the earning member as also his liabilities including the fact that the earning, member is residing with the family of the employee and whether he should not be a source of support to other members of the family.

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10.2 In cases where any member of the family of the deceased or medically retired employee is already in employment and is not supporting the other members of the family of the deceased employee, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the deceased employee so that, the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that the member of the family already employed is not supporting the family.

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11 MISSING EMPLOYEE

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Cases of missing employees are also covered under the scheme for compassionate appointment subject to the following conditions:-

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11.1 A request to grant the benefit of compassionate appointment can he considered only after a lapse of at least 2 years from the date from which the employee has been missing, provided that: An FIR to this effect has been lodged with the Police, The missing person is not traceable, and The competent authority feels that the case is genuine

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11.2 This benefit will not be applicable to the case of an employee: Who had less than two years to retire on the date from which he has been missing, or Who is suspected to have committed fraud, or suspected to have joined any terrorist organization or suspected to have gone abroad.

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11.3 Compassionate appointment in the case of missing employee also would not be a matter of right as in the case of others and it will be subject to fulfillment of all the conditions, including the availability of vacancy, laid down for such appointment under the scheme;

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11.4 While considering such a request, the results of the Police investigation should also be taken into account; and

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11.5 A decision on any such request for compassionate appointment should be taken only at the level of the Chairman & Managing Director of the Company.

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12 PROCEDURE

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a) The prescribed proforma may be used by the company for ascertaining necessary information and processing the cases of compassionate appointment.

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b) The officer from the Personnel department of the company should meet the members of the family of the employee in question immediately after his death to advice and assist to them in getting appointment on compassionate ground. The applicant should be called in person at the very first stage and advised in person about the requirements and formalities to be completed by him/her.

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c) An application for appointment on compassionate ground should be considered by the Committee of officers consisting of three officers, one Chairman and two members, in the rank of General Mangers / Deputy General Managers. The officer from the Personnel Department may also be made one of the members of the Committee, depending upon his rank. The Committee may meet during the second week of every month to consider cases received during the previous month. The applicant may also be granted personal hearing by the Committee, if necessary, for better appreciation of facts of the case. The recommendation of the Committee should be placed before the Competent Authority for a decision. If the Competent Authority disagrees with the Committee's recommendation, the case may be referred to the higher authorily for a decision.

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13 UNDERTAKING FOR MAINTENANCE OF THE FAMILY OF THE DECEASED EMPLOYEE

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The person appointed on compassionate grounds under the Scheme, should give an undertaking in writing (as in Annexure) that he/she will maintain properly the other family members who were dependent on the deceased employee in question, and in case if it is proved subsequently (at any time) that the family members are being neglected or are not maintained properly by him/her, his or her appointment may be terminated forthwith. This clause should be incorporated as one of

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the conditions in the offer of appointment applicable only in the case of appointment on compassionate ground.

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14 REQUEST FOR CHANGE IN POST/PERSON

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When a person has been appointed on compassionate ground to a particular post, the set of circumstances, which led to such appointment should be deemed to have ceased to exist. Therefore-

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(a) He/She should strive in his/her career like his/her colleagues for future advancement and any request for appointment to any higher post on considerations Of compassion should invariably be rejected.

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(b) An appointment on compassionate ground cannot be transferred to any other person and any request for the same on consideration of compassion should invariably be rejected.

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15 SENIORITY

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A person appointed on compassionate ground in a particular year may be placed at the bottom of all the candidates recruited/appointed through direct recruitment. promotion, etc. in that year, irrespective of the date of joining of the candidate on compassionate ground.

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16 TERMINATION OF SERVICE

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The compassionate appointment can be terminated on the ground of non-compliance of any condition stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him/her to explain why his/her services should not be terminated for non-compliance of the condition(s) in the offer of appointment and it is not necessary to follow the procedure prescribed in the CDA Rules of the Company.

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In order to check its misuse, the power of termination of service for non-compliance of the condition in the offer of

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compassionate appointment should vest only with the CMD of the Company.

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17 GENERAL

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(i) Appointment made on grounds of compassion should be done in such a way that persons appointed to the post do have the essential educational and technical qualifications and experience required for the post consistent with the requirement of maintenance of efficiency of administration.

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(ii) It is not the intention to restrict employment of a family member of the deceased or medically retired sub-staff employee to an erstwhile sub-staff post only. As such, a family member of such erstwhile sub-staff employee can be appointed to a clerical post for which he/she is educationally qualified provided a vacancy in clerical post exists for this purpose.

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(iii) An application for compassionate appointment should, however, not be rejected merely on the ground that the family of the employee has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of family etc.

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(iv) Compassionate appointment should be made available to the person concerned if there is a vacancy meant for compassionate appointment and he or she is found eligible and suitable under the Scheme.

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(v) Requests for compassionate appointment consequent on death or retirement on medical

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grounds of erstwhile sub-staff may be considered with greater sympathy by applying relaxed standard depending on the facts and circumstances of the case.

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(vi) Compassionate appointment will have precedence over absorption of surplus employees and regularization of temporary employees.”

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As can be seen from the aforesaid scheme, dependent

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family members of the deceased are spouse or wholly dependent son (including legally adopted son) or wholly dependant daughter (including legally adopted daughter) or wholly dependent brother or sister in the case of unmarried employee would be entitled to seek compassionate appointment. Interestingly, the scheme does not make a difference as to whether a dependent family member is married or not as on the date of seeking compassionate appointment. In this context, a perusal of the impugned communication at Annexure-A will indicate that the sole ground on which the respondent refuses to accept the application for compassionate appointment sought for by the petitioner is by coming to the conclusion that the petitioner having been married would not fall under the dependent category. As stated supra , in the absence of any nexus or connection between marriage of a person seeking appointment on compassionate grounds and the

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person being a dependent and falling under the dependent category, I am of the considered opinion that the reasons assigned by the respondents in the impugned communication is contrary to the scheme which warranting interference by this Court in the present petition.

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In view of the aforesaid facts and circumstances and

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the erroneous ground/reason assigned by the respondents for rejecting the request for compassionate appointment sought for by the petitioner, I am of the considered opinion that the impugned communication at Annexure-A deserves to be set aside and the matter is remitted back to the respondents for reconsideration afresh in accordance with law within a stipulated time frame.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed.

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(ii) The order at Annexure-A dated 17.08.2022

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passed by respondent No.2 is hereby set aside.

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(iii) Matter is remitted back to respondent No.2 for reconsideration of the claim/request/application

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of the petitioner for compassionate appointment in accordance with law and the scheme produced at Annexure-R1 within a period of 2 months from the date of receipt of a copy of this order.

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(iv) It is made clear that the respondent-insurance company shall reconsider the claim for compassionate appointment sought for by the petitioner without reference to her marital status.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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SN

Smt. Sowmya a N v. the General Manager

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Smt. Sowmya a N v. the General Manager

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