Central Administrative Tribunal - Allahabad
Shri Chandrakanti Singh vs State Of Haryana & Others Dated ... on 3 May, 2016
(RESERVED) on 01.03.2016 CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 03rd day of MAY, 2016. Original Application Number. 1132/2007 HONBLE MR. JUSTICE DINESH GUPTA, MEMBER (J) HONBLE MS. NITA CHOWDHURY, MEMBER (A) 1. Shri Chandrakanti Singh, aged about 38 years, D/o Shri Awadh Narain Singh, Village & Post Office Garaha, Basti. Applicant. VE R S U S 1. Union of India through Secretary, Ministry of Communication, Government of India, New Delhi. 2. The Assistant Director, Officer of the Chief Post Master General, U.P. Circle, Lucknow. 3. The Post Master General, Gorakhpur Region, Gorakhpur. 4. The Superintendent of Post Office, Basti Division Bench. 5. S.D.I. Basti Division Basti. 6. Shri Punnu Lal, GDSMC, Bairangal, Basti ..Respondents Advocate for the applicant : Shri Sunil Shri B.N. Singh Advocate for the Respondents : Shri S. Srivastava O R D E R
Delivered by Honble Mr. Justice Dinesh Gupta J.M. Shri B.N. Singh, learned counsel for the applicant and Shri Sameer Srivastava, learned counsel for the respondents are present.
2. This O.A. is preferred for following reliefs:-
(a) To quash the impugned Order dated 09.07.2007 passed in pursuance to letter dated 20.06.2007.
(b) The respondents may be directed to reinstate the applicant on the post of G.D.S.B.P.M.
(c) The respondents may further be restrained from filling the aforesaid vacant post by means of regular selection, during pendency of the present original application.
(d) The respondents may be directed to pay the arrears of pay and allowance with all consequential benefits.
(e) Any direction may be issued to the respondents, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
(f) Award cost in favour of the applicant.
3. The brief facts of this O.A. are enumerated below:-
(i) The mother of the applicant namely late Smt Phoolpatti Singh was working as G.D.S.B.P.M (Kaptanganj), Garaha, under control of the respondents and while in service, all of a sudden, she expired on 30.01.2006. At this juncture, it is relevant to mention here that as per rule, since the ED Posts are isolated and well spread out, it is therefore, a vacancy caused due to the death of an ED Agents and should be filled up by appointing one of the dependent/near relatives of the deceased employee on compassionate ground. It is relevant to mention here that the applicant is living with her parents and two sons, after divorce from her husband w.e.f. 25.07.2001. It may further be added that after being separated from her husband, the applicant has been completely dependent on her mother.
(ii) Accordingly, the applicant, being youngest daughter and a dependent of deceased employee applied for appointment as G.D.S.B.P.M in place of her mother on compassionate ground. The respondents vide letter dated 15.02.2006 asked the applicant to furnish copy of certain documents regarding compassionate appointment, reference of the same may be taken from the letter dated 15.02.2006 issued by the respondent no. 4. As desired by the respondents vide letter dated 15.02.2006, the applicant furnished all documents viz copy of family register, copy of khatauni, educational qualification, copy of land, valuation of house and income certificate. After careful consideration and examination the respondent no. 3 issued a letter dated 18.10.2006 offering appointment in favour of the applicant on compassionate ground. After completing all the formalities the applicant submitted her joining report to the respondent no. 4 on 26.10.2006. Vide letter dated 09.12.2007 and 09.01.2007, the respondent no. 2 directing respondents no. 4 sought certain clarification regarding compassionate appointment of the applicant, reference of the same may be taken from letter dated 9.12.2007 and 09.01.2007 issued by the Assistant Director, Office of C.P.M.G., Lucknow. As per aforesaid letters issued by respondent no. 2, by means of letter dated 19.01.2007, the respondent no. 4, has given direction to the respondent no. 5 to remove objection as raised by the respondent no. 4 and give certified copy of requisite documents and the copy of the said letter dated 19.01.2007 was also endorsed to the applicant. In compliance of the aforesaid letters, as issued by the respondents, the applicant submitted requisite documents (certified) to respondent no. 5. Vide letter dated 20.06.2007, the respondent no. 2 directed the respondent no. 3 to cancel the appointment of the applicant on compassionate ground mentioning reason therein that since the applicant is married, she is not dependent of the deceased, as such appointment of the applicant on compassionate ground is irregular and may be cancelled with immediate effect. In view of the aforesaid, it is humbly submitted that though the applicant was married to Shri Janardan Prasad Singh in the year 1987 and after one year of her marriage she started living separately from her husband and started living with her parents from 1988.
(iii) It is further submitted that in the mean time the mother of the applicant on whom she was totally dependent, died on 30.01.2006, as such the applicant applied for compassionate appointment in place of her mother along with relevant documents and the respondent no. 3 was pleased to appoint the applicant on compassionate ground on 26.10.2006. The cancellation letter dated 20.06.2007 issued by respondent no. 2 was without affording any opportunity to the applicant and is also against the rules. The respondents while terminating the services of the applicant have not mentioned under which provision the respondents have terminated the services of the applicant, though in-fact the rule 6 of ED (Conduct and Services), Rule 1964 has specifically provided for the termination of service of the ED. Surprisingly enough, all of a sudden, respondent no. 4 in response to the letter dated 20.06.2007 and instruction issued by the respondent no. 2, endorsing copy to the applicant has issued a letter dated 09.07.2007, served on 12.07.07 through which appointment of the applicant was cancelled. According to the rules, only dependents or near relative is appointed on the post of G.D.S.B.P.M. if the same is vacant on account of death, as such the applicant, being dependent is fully entitled to get appointment in place of her deceased mother. In pursuance of the aforesaid direction of the respondent no. 3, the respondent no. 4 in an arbitrary and illegal manner terminated the services of the applicant and also appointed respondent no. 6 on the said post of G.D.S.B.P.M. w.e.f. 17.07.2007 and the respondent took the signature of the applicant on the charge report and relieved the applicant and also allowed the respondent no. 6 to perform his duty on the said post of G.D.S.B.P.M. It is also submitted that the respondent no. 3 cancelled the appointment of the applicant willfully and deliberately for the purpose to accommodate his own chosen person. The services of the applicant could not have been terminated or her appointment could not be cancelled without giving her a show cause notice or opportunity in accordance with rules. As such the action taken by the respondents is wholly illegal, arbitrary and the same is also against the rules. It is also relevant to mention here that the respondents have not served any show cause notice to the applicant that they are going to cancel her appointment. A cancellation letter dated 09.07.2007 issued by the respondent no. 4 is illegal, unlawful, unconstitutional, against the law of natural justice, without show cause notice and without affording reasonable opportunity to the applicant to place her view, the applicant has served with the respondent no. w.e.f. 26.10.2007 to 15.07.2007.
(iv) The applicant has also challenged the illegal and arbitrary order dated 03.01.2008 passed by respondent no. 4 by which the claim of applicant was rejected. The said order was filed with counter affidavit and said order not received by the applicant before filing counter affidavit, hence challenging the said order. The said order was passed in an arbitrary manner which is not sustainable in the eye of law and liable to be set aside. The applicant already showed all her liabilities before the appointment and also showed the divorce between her and her husband. In view of aforesaid fact, the order dated 03.01.2008 is not sustainable in the eyes of law.
(v) Learned counsel for the applicant lastly contended that since there was no option left with the applicant, he knocked the door of this Court for redressal of his grievance.
4. Notices were issued to the respondents, in turn learned counsel for the respondents filed counter affidavit stating therein that the compassionate appointment scheme is applicable to the dependent family members of a Govt. servant who dies in service or is retired on medical grounds. It is relevant to mention here that the compassionate cases are considered by Circle Relaxation Committee constituted in the office of the Chief Postmaster General, UP Circle, Lucknow. The grounds, which can justify compassionate appointment is primarily condition of the family and it should be offered against the destitution. In addition, objective of the scheme is to help the family to get out of the emergency, which is indigent and deserves immediate assistance for relief from financial destitution. It is also relevant to mention here that the Department is governed by the instructions issued by the Nodal Ministry i.e., Ministry of Personnel (Department of Personnel & Training) which has issued instructions in pursuance of the Order of Apex Court in the case of V.K. Nagpal Vs. State of Haryana & Others dated 04.05.1994 (JT 1994 (3) SC(525) in which the Hon'ble Supreme Court has held that as a rule, appointment of Public Service should be made strictly on the basis of open invitation of applications and merit and appointment on compassionate ground is an exception to the rule. The applicant is married daughter of the late Smt. Phool Pati Singh, who was functioning as Gramin Dak Sewak Branch Post Master Garha, in account jurisdiction with Captainganj S.P. (Basti) and died while in service on 30.01.2006. The applicant who is the married daughter of deceased Smt. Phool Pati Singh Gramin Dak Sewak Branch Post Master Garha (Captaingunj) Basti applied for employment for the post of Gramin Dak Sewak Branch Post Master Garha on compassionate ground and after completion of usual formalities for compassionate appointment, the case of the applicant was considered by the Circle Relaxation Committee and keeping in view the various instructions on the subject issued by the Nodal Ministry (Department of Personnel & Training) and the circumstances of the family of the deceased employee (financial condition & social liabilities etc), the case of the applicant could not be approved for compassionate appointment on the following ground:-
(i) The family of deceased consists of two daughters and husband of the deceased. It is worth to mention that the husband of the deceased had two married wives and one Smt. Savitri Singh aged about 61 years is alive. Both the daughters are major and married and there is no liability of school going children. There are no marriageable daughters. Thde amount of Rs. 48,000/- has been paid to the applicant on whose favour the living member of the deceased had consented. The sum of Rs. 18,208 (Eighteen Thousand Two Hundred and Eight) is to be paid. The family of the deceased employee is living in own house and possess agricultural land. The monthly income of the applicant's husband is Rs.3,000/- per month of his own share while the another daughter of deceased (other than applicant) is Teacher in Primary Patshala Nakati Deyi Buzurg.
(ii) The decision of the circle relaxation committee has been conveyed to the applicant vide letter no. A.485/Garha/Loose/07 dated 03.01.2008 as desired vide Chief Post Master General U.P. Circle Lucknow letter no. Bharti/M.8/122/2007/2 dated 28.12.2007.
5. The learned counsel for the applicant filed rejoinder affidavit denying the contention raised by learned counsel for the respondents and reiterated the contents already stated in the O.A. It is submitted here that after the death of the applicants mother, the department considered the destitution condition of applicant and provided appointment on the post of G.D.S.B.P.M. Garaha in account jurisdiction with Captain ganj S.O. till the approval by the Chief Post Master General. The applicant is divorcee, helpless and was totally dependent on her mother. The deceased applicant was the only earning member in the family and suddenly died during service period. She had not left any movable and immovable property or shop etc. for livelihood. It is further submitted that the divorce was made between applicant and her husband on 25.07.2001 by panchayat and thereafter she was totally dependent on her mother. The applicant brought this fact before the concerned department, after death of her mother. The father of the applicant is unemployed and is regularly ill. The claim of the applicant was rejected only on one ground that the applicant is married but in fact divorce has already been made in the life time of her mother. The authority concerned did not consider the claim of the applicant on the ground that divorce was made by panchayat and not by civil court. It is relevant to mention here that divorce was also made by civil judge (S.D.) Basti on 18.10.2008 and same was provided to the concerned department to consider it, but authority concerned did not consider it at all.
6. During the pendency of this O.A., this O.A. was dismissed on 27.02.2012 in the absence of the applicant, however the same was again restored.
7. Heard the learned counsel for the applicant and the respondents.
8. Learned counsel for the applicant submitted that the applicant was given appointment on 26.10.2006 on compassionate ground after the death of her mother, who died during her service period. However, vide Order dated 09.07.2007, the respondent no. 3 without affording any opportunity or showcause notice terminated the services of the applicant on the ground that she is married daughter and does not come under the definition of dependents. The applicant being separated/divorcee daughter of the late mother is fully entitled to get appointment in place of her deceased mother. However, without affording any opportunity or showcause to the applicant, the respondents have illegally cancelled the appointment of the applicant, which is the main issue in this O.A. He further submits that the respondents cancelled the appointment of the applicant to accommodate their own chosen person. The services of the applicant could not have been terminated or appointment could not have been cancelled without giving show case or opportunity in accordance with the rules. Learned counsel further submits that the applicant was living separately from her husband long back and gram panchayat had granted them divorce in 2001. The Civil Judge (S.D) had also passed a decree in the divorce petition filed by the applicant's husband and accepted the fact that the parties were living separately long back and they have already been divorced before panchayat in 2001.
9. Lastly, learned counsel for the applicant submitted that the applicant is to be treated as dependent of the deceased and should be entitled for appointment under compassionate ground as she was totally dependent on her mother. Learned counsel further submits that the deceased mother of the applicant did not leave any movable or immovable property and she was the sole bread winner of the family and the applicant was totally dependent on her. She is fully competent to get the appointment on compassionate ground and after considering all the circumstances and conditions, the applicant was given appointment and without affording any opportunity or show cause to the applicant the same was cancelled, which is totally illegal against the law. In support of his contention learned counsel relied upon judgement dated 18.01.2006 in writ petition no. 34396 of 2005, Mahendra Singh Vs. Union of India & others (ALL)-2002-2-144, Rajesh Kumar Vs. State of U.P. and others 2000 (1) ESC 291 (All), Ajay Kumar Sharma vs State Government of U.P. 2002 (5) AWC 3708, Yogendra Ram Chaurasiya vs State of U.P. and others 2008 (2) ADJ 509, Ram Chandra vs State of U.P. and others, 1999 (2) ESC 972 (All) Ravi Karan Singh vs State of U.P. and Others, 2015 lawsuit (All) 3524 Vimla Srivastava vs State of U.P. and another.
10. Learned counsel for the respondents submitted that the applicant being the married daughter of the deceased mother was not eligible to be appointed on the basis of compassionate ground. She was only appointed previously vide Order dated 18.10.2006 on the post of G.D.S.B.P.M. only for a period of one year and the said appointment shall be subject to the approval of the higher authorities. The case of the applicant was placed before the Circle Relaxation Committee and keeping in view all the instructions passed by the Nodal Ministry (DoPT) and the financial condition and social liabilities of the family, the case of the applicant could not be approved for compassionate appointment and it was intimated to the applicant vide Order dated 19.07.2007. There is no illegality in the said letter as the appointment of the applicant was purely on temporary basis and subject to approval of higher authorities and when the Circle Relaxation Committee did not approve the appointment, the applicant was removed from service. The learned counsel further submitted that admittedly the applicant was married daughter of late Shrimati Phoolpati Devi and she does not come under the definition of family. More so, she is not a dependent of the deceased employee and such she is not entitled to get appointment on compassionate ground. Lastly, learned counsel submits that O.A. lacks merit and deserves to be dismissed.
11. We are unable to accept the contention raised by learned counsel for the respondents. From the pleadings and the arguments before us, the only dispute between the parties is regarding the status of the married daughter and whether she is entitled to get compassionate appointment after the death of her parents. In the present case, the mother of the applicant expired during her service period and the applicant applied for appointment on compassionate ground. After considering the financial and social liabilities of the applicant's family, she was offered appointment on the post of G.D.S.B.P.M. When the matter was considered by the higher authorities and relaxation committee, the applicant's appointment was cancelled only on the sole ground that she is married daughter and does not fall under the definition of family of the deceased and she is not dependent on the deceased employee. This problem was clearly raised and resolved vide a judgement of the Allahabad High Court in Vimla Srivastava Vs State of U.P. and others, which was settled by the Chief Justice and another. The only relevant question before the Court was whether the married daughter is entitled for appointment on compassionate ground or not. The Court held as under:-
10. While assessing the rival submissions, it must be noted at the outset that the definition of the expression "family" in Rule 2 (c) incorporates the categories of heirs of a deceased government servant. Among them are the wife or husband, sons and adopted sons, unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law. Clause (ii) of Rule 2 (c) brings a son as well as an adopted son within the purview of the expression "family" irrespective of marital status. A son who is married continues to be within the ambit of the expression "family" for the purpose of Rule 2 (c). But by the stroke of a legislative definition, a daughter who is married is excluded from the scope and purview of the family of a deceased government servant unless she falls within the category of a widowed daughter. The invidious discrimination that is inherent in Rule 2 (c) lies in the fact that a daughter by reason of her marriage is excluded from the ambit of the expression "family". Her exclusion operates by reason of marriage and, whether or not she was at the time of the death of the deceased government servant dependent on him. Marriage does not exclude a son from the ambit of the expression "family". But marriage excludes a daughter. This is invidious. A married daughter who has separated after marriage and may have been dependent on the deceased would as a result of this discrimination stand excluded. A divorced daughter would similarly stand excluded. Even if she is dependent on her father, she would not be eligible for compassionate appointment only because of the fact that she is not "unmarried". The only basis of the exclusion is marriage and but for her marriage, a daughter would not be excluded from the definition of the expression "family".
11. The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression "family" and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment. The matter can be looked at from a variety of perspectives. Implicit in the definition which has been adopted by the state in Rule 2 (c) is an assumption that while a son continues to be a member of the family and that upon marriage, he does not cease to be a part of the family of his father, a daughter upon marriage ceases to be a part of the family of her father. It is discriminatory and constitutionally impermissible for the State to make that assumption and to use marriage as a rationale for practicing an act of hostile discrimination by denying benefits to a daughter when equivalent benefits are granted to a son in terms of compassionate appointment. Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to be a daughter. This relationship is not effaced either in fact or in law upon marriage. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status. The State has based its defence in its reply and the foundation of the exclusion on a paternalistic notion of the role and status of a woman. These patriarchal notions must answer the test of the guarantee of equality under Article 14 and must be held answerable to the recognition of gender identity under Article 15.
12. The stand which has been taken by the state in the counter affidavit proceeds on a paternalistic notion of the position of a woman in our society and particularly of the position of a daughter after marriage. The affidavit postulates that after marriage, a daughter becomes a member of the family of her husband and the responsibility for her maintenance solely lies upon her husband. The second basis which has been indicated in the affidavit is that in Hindu Law, a married daughter cannot be considered as dependent of her father or a dependent of a joint Hindu family. The assumption that after marriage, a daughter cannot be said to be a member of the family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. Our society is governed by constitutional principles. Marriage cannot be regarded as a justifiable ground to define and exclude from who constitutes a member of the family when the state has adopted a social welfare policy which is grounded on dependency. The test in matters of compassionate appointment is a test of dependency within defined relationships. There are situations where a son of the deceased government servant may not be in need of compassionate appointment because the economic and financial position of the family of the deceased are not such as to require the grant of compassionate appointment on a preferential basis. But the dependency or a lack of dependency is a matter which is not determined a priori on the basis of whether or not the son is married. Similarly, whether or not a daughter of a deceased should be granted compassionate appointment has to be defined with reference to whether, on a consideration of all relevant facts and circumstances, she was dependent on the deceased government servant. Excluding daughters purely on the ground of marriage would constitute an impermissible discrimination and be violative of Articles 14 and 15 of the Constitution. "
12. The Division Bench of the Allahabad High Court relying upon the various judgements in this regard finally held that:-
..26. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law.
In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.
27. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.
28. In consequence, we direct that the claim of the petitioners for compassionate appointment shall be reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status. .
13. Learned counsel for the respondents has failed to bring any other judgement to contradict the stand taken by the Division Bench of the Allahabad High Court. Thus, in view of such above, it is clear that married daughter is already entitled for compassionate appointment after the death of her parents. So far as, condition of the applicant is concerned she was appointed permanently and was terminated without affording any opportunity or show cause. Her contention was supported by some judgements.
14. After considering the judgment of the Honble High Court, we are of the view that the married daughters are also entitled for compassionate appointment after the death of her parents.
15. Hence, on the basis of above observation, the O.A. is allowed and we are quashing the Orders dated 09.07.07 and 3.01.08, the matter is sent back to the respondents for reconsideration for appointment of the applicant on the compassionate ground after the death of her mother in the light of the observation made in the judgment by the Allahabad High Court.
MEMBER-A MEMBER- J.
Arun 15