Central Administrative Tribunal - Lucknow
Unknown vs Union Of India Through Secretary on 13 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, LUCKNOW BENCH, LUCKNOW. Original Application No. 213 of 2012 Reserved on 29.11.2013 Pronounced on 13th December, 2013 Honble Ms. Jayati Chandra, Member-A Sudheer Kumar, aged about 32 years, S/o late Sri Kailash Chandra, R/o House No. 614/325, Preeti Nagar, Didauli Marg, Sitapur Road, Lucknow. . .Applicant By Advocate : Sri A. Kumar Versus. 1. Union of India through Secretary, Ministry of Communication & I.T. Department of Posts, New Delhi. 1. The Director General (Posts), Dak Bhawan, Parliament Street, New Delhi. 2. The Chief Postmaster General, Department of Post, U.P. Circle, Lucknow. 3. The Senior Superintendent of Post Offices, Lucknow Division, Lucknow. 4. The Assistant Superintendent, Post Offices, North Sub-Division, Lucknow. .Respondents. By Advocate : Sri S.L. Mishra O R D E R
The applicant has filed the present Original Application under Section 19 of Administrative Tribunals, Act 1985 with the following relief(s):
(a) to set-aside the letter/rejection order dated 22.2.2012 issued by respondent no.4 as contained in Annexure no.1 to this Application.
(aa) to set-aside the entire proceedings of the meeting held on 5.1.2012 and 6.1.2012 by Circle relaxation committee, U.P. Lucknow after summoning the same.
(b) To direct the respondents to give appointment to the applicant on the compassionate ground on any post according to educational qualification in the department keeping in view the fundamental rights guaranteed by the Constitution of India and the financial destitution and penurious condition of the family and the insufficient amount of the family pension being paid to the deceased family.
(b) ..
(c) .
2. The facts of the case are that the applicants father late Kailash Chandra was working as Shorting Postman in Mahanagar Post Office, Lucknow, died in harness on 26.7.2007 leaving behind his widow Indira Devi, two sons Sanjay Kumar and Sudhir Kumar and two daughters, Manju Kumari and Meenakshi both unmarried at the time of the death. The entire terminal benefits were calculated by the respondents to the tune of Rs. 4,04,299/- from which Rs. 78,468/- was recovered on account of departmental loan taken by the deceased. The family pension of Rs. 4971/- per month was sanctioned (Annexure-3). The deceased had brought a small house after taking loan to the tune of Rs. 2,20,000/- from the Bank and the outstanding loan was Rs. 1,67,690/- at the time of death of the deceased. After the death of Kailash Chandra, the applicant as well as his mother made several representations to the respondents for appointment on compassionate ground in favour of the applicant. The applicant has passed B.A. Degree and is also having knowledge of Computer typing of Hindi & English. The elder son of the deceased is employed in private sector and is living separately and giving no financial help to the bereaved family. The case was put up before the Circle Relaxation Committee (In short CRC) in its meetings held on 8.12.2009 to 10.12.2009 and 16.12.2009. In that meetings, the case of the applicant was considered, but not recommended for appointment on compassionate ground on account of limited number of vacancies falling within the ceiling of 5% allotted to compassionate appointment quota. The applicant was informed vide impugned order dated 22.2.2012 contained in Annexure no.1. However, vide letter dated 21.1.2010 (Annexure-8) the respondents have informed the applicant that his case has been retained for consideration by the CRC for future vacancies. The applicant is aggrieved by the impugned order as the competent authority has not applied his mind regarding the financial condition of the family of the deceased and has passed a cryptic order. The case of the applicant is squarely covered by the decision rendered in the case of Hari Ram Vs. Food Corporation of Indian & Others reported in (2009) 3 UPLBEC 2212. More-over, the applicant has already been selected in CRC meeting held on 8.12.2009 to 10.12.2009 and 16.12.2009, but appointment could not be issued due to limited number of vacancies within 5% of direct recruitment quota.
3. The respondents have contested the claim of the applicant by filing a detailed Counter Reply stating that the case of the applicant was considered by the CRC in its meeting on the basis of revised parameter and system of allocating merit, points to compassionate cases as per Directorate letter dated 20.10.2010, but the CRC could not recommend the case of the applicant for appointment on compassionate ground as the applicant secured only 55 points whereas last selected candidates had secured 71 points. The respondents have further stated that they have retained the name of the applicant for consideration in future vacancy in accordance with departmental scheme. Further, they have denied that the applicant was ever selected for appointment on compassionate ground, but no order has been issued to the applicant. It is specifically submitted by the respondents that the case of the applicant has been considered and rejected only on finding it has secured lower merit points for appointment on compassionate ground.
4. The applicant has filed Rejoinder Reply denying the averments made in the Counter Reply and reiterating the averments made in the Original Application. The applicant has stated that although his case was placed before the meeting of CRC held on 11.4.2013, 12.4.2013 and 15.4.2013, but due to limited number of vacancies under compassionate appointment quota and taking into account the relative higher merit points, the applicants case could not be recommended by the CRC. The applicant has further averred that his case should be considered as per the scheme of 1998 and not under the scheme of 2010 as death of the applicants father died in the year 2007. Clause 7 (F) of 1998 Scheme provides that if sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/Department/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.
5. I have heard the learned counsel for the parties and have perused the material available on record.
6. The concept of compassionate appointment was examined by the Honble Supreme Court in the following cases:-
(i) V. Shivamurthy Vs. State of A.P. reported in 2008 (13) SCC 730
(ii) State of J& K Vs. Sajad Ahmad Mir reported in 2006 (5) SCC 766.
(iii) National Hydro electrical Power Corporation Vs. Nanak Chand reported in 2000 (12) SCC 487.
(iv) Panjab National Bank Vs. Ashwani Kumar Taneja reported in (2004) 7 SCC 265.
(v) Haryana SEB Vs. Krishna Devi reportd in 2002 (10) SCC 246.
(vi) Sanjay Kumar Vs. State of Bihar reported in (2000) 7 SCC 192 and many others.
The Principles relating to compassionate appointment may be summarized as follows:
(a) Compassionate appointment is by and large against the principle of Article 14 & 16 of Constitution of India as appointment in public service must be made on the basis of open recruitment where similarly situated persons may have equal opportunity to be considered for appointment in a public service. However, appointment on compassionate ground as an exception to the general rule is resorted to in order to meet sudden crises facing a family on account of death of bread winner while in service.
(b) Compassionate appointment can neither be claimed nor be granted unless rules governing the service permit such appointment. Such appointment shall be made strictly in accordance with the scheme governing such appointment and against existing vacancy.
(c) Compassionate appointment is permissible to only one dependent member of the deceased family and such appointment can be made only against Group D and Group C post.
In Santosh Kumar Dubey Vs. State of U.P. reported in 2009 (6) SCC 481 the Honble Supreme Court has held that the very concept of giving compassionate appointment is to help the family tide-over the immediate crisis. In State of J & K Vs. Sajad Ahmad Mir (supra) the Honble Supreme Court has held that ..Once it is proved that in spite of death of bread winner, the family survived and substantial period is over, there is no necessity to say Good-Bye to the normal rules of appointment and to show favour to one at the cost of interest of several others including the mandate of Article 14 of Constitution of India. In the instant case, the death of government employee occurred in the year 2007 and the family has managed to survive not just the immediate crisis, but till date. More-over, the respondents have kept the issue alive and have indicated through the order dated 21.2.2012that his case is going to be considered in future vacancy.
7. In this case, the applicants father died in the year 2007 and thereafter the case of the applicant has been considered by the respondents on various dates, but they were unable to accommodate the applicant as numbers of vacancies are very limited to the extent of 5% within the direct recruitment quota, were not adequate to cover such cases. The applicant has not challenged the merit points secured by him or a person with lower merit than him was given appointment.
8. The applicant, by the way of Rejoinder, averred that his case is to be considered in terms of Scheme for Compassionate Appointment of 1998. Clause 7 (F) of the 1998 Scheme provides that if sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/Department/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list, is concerned, the relevant portion is quoted below:-
Clause 7 (F) provides that if sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/Department/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.
9. The use of the word open can be interpreted as an enabling provision, not a mandatory provision. The meaning of the word open in the Shorter Oxford Dictionary is to undue recall or set-aside (judgment, settlement, sale etc.) so as to leave the matter open to further action, discussion or negotiation. Thus, there is no mandatory direction to the respondents to follow a particular course of action. In this case, the respondents instead of referring the matter to the other Ministry/department have retained the matter for consideration in the future vacancy.
10. In view of what has been stated above, the O.A. has no merit and is liable to be dismissed. Accordingly, O.A. is dismissed. No order as to costs.
(Ms. Jayati Chandra) Member-A Girish/-
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