Central Administrative Tribunal - Delhi
Deepak vs D/O Post on 18 July, 2024
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OA No. 518/2021
Item No. 76 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 518/2021
This the 18th Day of July, 2024
Hon'ble Mr. Manish Garg, Member (J)
Sh. Deepak S/o Late Sh. Shiv Chander Rai, (Ex-MTS)
R/o H.No. F-426, Mangol Puri New Delhi-110083
....Applicant
(By Advocates : Ms. Deepika)
VERSUS
1. The Union Of India Through Secretary
The Department of Posts: India, Office of the Senior
Superintendent Delhi Sorting Division Delhi mail ID
110006. [email protected]
2. Central Post Master General, Delhi Circle Department
of Post, Meghdoot Bhawan, Link Road, Delhi-110001
mail ID [email protected]
.... RESPONDENTS
(By Advocate : Mr. J.P. Tiwari)
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OA No. 518/2021
Item No. 76 (C-4)
ORDER (ORAL)
In the instant OA, the applicant seeks the following reliefs :
a) To quash and set aside the impugned orders bearing No. B-1/1-
6/Deepak/2016-2017 dated 13.06.2019, B-1/1- 6/Deepak/2016-2017 dated 02.12.2019, B-1/1- 6/Deepak/2016-2017 dated 27.12.2019, B41/48/2017-2018 dated 11.02.2020.
b) To declare the action of the Respondent in cancelling the offer of appointment of applicant as illegal and direct the Respondent to appoint the applicant on compassionate grounds with all consequential benefits including arrears of pay from 2016 onwards.
c) To allow the OA with cost.
d) To pass any other order which this Hon'ble Court deem, fit and proper under the facts and circumstances of the case.
2. Learned counsel relies upon a detailed order passed on 13.12.2023 which reads as under :
Learned counsel for the applicant draws attention to the communication between the respondents and the sister of the applicant, wherein it has been stated that the family is surviving with two daughters and one son and the mother has already expired. Therefore, the entire responsibility lies on the elder sister, i.e. Ms. Kamini Rai, and she requested that the compassionate ground appointment be rendered to her younger brother, Mr. Deepak Rai (applicant herein) when he attains the age of 18 years. She further draws attention to the letter issued by Sr. Superintendent of Post Office, Delhi, wherein she was advised to approach the Department only after her brother attained the age of 18 years. The applicant became major on 25.10.2016 and subsequently, he applied for compassionate appointment on 11.11.2016 and during the period from 11.11.2016 to 12.10.2019, they repeatedly approached the respondents. Vide letter dated 02.12.2019, the applicant was informed that his matter was considered and placed on 29.05.2019 before the Committee for the appointment under 5% direct recruitment quota but approval was not granted. It is further stated that it is not that you can apply for the compassionate appointment at any time. He was informed that his father died on 20.04.2011 and since then you have not 3 OA No. 518/2021 Item No. 76 (C-4) submitted any application seeking appointment on compassionate grounds, which confirms that your family could manage the livelihood for the last 8 years and hence, your case has not been considered under the category of needy persons.
Learned counsel for the respondents states that the Hon'ble Apex Court in the matter of Umesh Kumar Nagpal Vs. State of Haryana & Ors, JT 1994 (3) S.C. 525, has observed that the appointment on compassionate grounds cannot be given after a lapse of a reasonable period and it is not a vested right which can be exercised at any time in future.
On perusing the records and averments made by the learned counsels for the parties, this communication of the Sr. Superintendent of Post Offices (Sorting Division) establishes that the situation is very critical as they have forgotten the earlier communication by the wards/daughters of the deceased employee, who have already approached the administration seeking compassionate appointment for their brother on his attaining the age of 18 years, which was acknowledged by the authorities as per their advice vide letter dated 19.12.2011.
Learned counsel for the respondents submits that he is neither aware of this communication nor his court file has a copy of Page no. 25 (Annexure A-6) of OA wherein the said information is stated to be available.
Learned counsel for the applicant further informs that the family is in distress as Ms. Kamini Rai, the sister of the applicant has been suffering from a medical condition and is involved in a family dispute. Therefore, the family urgently needs support.
In view of the above, the learned counsel for the respondents is directed to seek instructions why the communication dated 02.12.2019 should not be treated as arbitrary and contrary to the letter communicated by the same respondents after receiving the application dated 06.07.2011 from the applicant, which they replied to on 19.12.2011 and also clarify that how come the comments section of the minutes of the meeting on compassionate appointment has given reasons for the rejection of the compassionate appointment sought by the applicant and how they rejected the same primarily based on the Hon'ble Apex Court's judgment (supra). They are further directed to provide the details on how many compassionate appointment cases have been handled by them since 2016 and how they could not find merit in the case of the applicant, where there is no bread earner vis a vis the other 24 candidates who have been appointed be them. He is directed to file an affidavit along 4 OA No. 518/2021 Item No. 76 (C-4) with supporting documents within two weeks, after serving a copy thereof to the other side.
List on 11.01.2024.
3. Pursuant to the directions as contained in order dated 13.12.2023, an additional affidavit has been filed on 03.05.2024. Learned counsel relies upon para 8 which reads as under :
8. This Hon'ble Tribunal, while hearing the matter on 23.12.2023, further directed the respondents to provide the details on how many Compassionate appointment cases have been handled by them since 2016 and how they could not find merit in the case of applicant, where there is no bread earner vis a vis the other 24 candidates appointed by them.
In response to above observations of Hon'ble Tribunal, it is submitted that applicant was eligible for MTS post as per his qualification. Since 2016 till 2022, total 418 compassionate cases were received by the respondents. Of them, against the vacant posts of MTS, 49 vacancies were filled up by appointment on compassionate grounds. Applicant's case was placed before the Circe Relaxation Committee for the vacancies 2017-18 but it was not recommended. For the year 2017-18, total 24 vacancies were earmarked against 5 % compassionate appointment quota for PA/Postman/MTS posts. Total 57 applications were received by the Respondents against the 24 vacancies. Comparative merit points were calculated in each case based on various attributes viz. family pension of deceased employee, monthly income, movable/immovable property, number of dependents, number of unmarried daughters, number of minor children, left over service and additional if spouse is the applicant. It is pertinent to mention here that Circle Relaxation Committee examine each and every compassionate appointment case on Relative Merit Point System (RMPS) which is based on 100 point criterion, comprising various maximum points for family status, family pension of deceased employee, monthly income, movable/immovable property, number of dependents, number of unmarried daughters, number of minor children, left over service of the deceased employee and additional weight age if spouse is the applicant. CRC recommended 24 candidates and rejected the case of remaining 33 candidates including applicant. Of 24 5 OA No. 518/2021 Item No. 76 (C-4) recommended candidates, 09 candidates were recommended for MTS post.
4. Learned counsel for the applicant filed a rejoinder highlighting paras 7(iii) and 7(vi) which read as under :
7(iii). That the contents of Para No. 7(iii) are denied being wrongly stated it is wrong to say that the Respondent never gave any direction to the Applicant to apply after attaining the age of 18 years as both the sisters admitted in her application dated 06.07.2011 that they are not billing for compassionate appointments as they have to take care of their younger brother. The Respondent has placed record letter dated 19.12.2011 as Annexure-E with their counter reply, which specifically mentions that the Respondent had acknowledged the letter dated 6.7.2011 and in reply to that the Respondent submitted that the Applicant Sh. Deepak Rai, can apply for compassionate appointment after retaining the age of 18 years to this department. The said letter was signed and the copy of the same was also sent to IPO, RMS Bhawan, Delhi-110006, for information as well as to the concerned office. Therefore, the Respondent cannot take this plea, at this stage that the Respondent had never given any direction to the Applicant to apply after attaining the age of 18 years to the department. Further, the Respondent has not complied with the order dated 13 12. 2023 passed by this Hon'ble court, whereby the court had directed the Respondent to seek instructions why the communication dated 2.12.2019 should not be treated as arbitrary and contrary to the letter communicated by the same Respondents after receiving application dated 06.07.2011 from the Applicant which they replied to on 19.12.2011. The Respondents have not clarified about this point. Rather, they have submitted wrong affidavit stating that the Respondent had never given any directions to the Applicant to apply after the age of 18 years.
7(vi). That the contents of Para No. 7(vi) are matter of record. However, it is submitted that as per the remarks of CRC, it was submitted that compassionate appointment cannot be granted after a lapse of reasonable period and it is not vested right of the Applicant which can be exercised any time in future. In this context, it is submitted that these remarks are contrary to the letter dated 19.12.2011 written by the Respondent to the Applicant. It is important to submit that as per para 11(b) of the minutes of meeting filed along with counter affidavit at page 35 it is mentioned that the Applicants mentioned at serial number 5, 6, 7 and 8 had equal points that is 50 the Applicant at serial 6 OA No. 518/2021 Item No. 76 (C-4) number seven being 10th pass and did not fulfill the educational qualification for post of PA/SA etc., but his points are quite high in the merit. In this context, it is submitted that the Applicant who was 10th pass at that time was also eligible for other posts as well as the qualifications for the post of PA/SA, postman/mail guard and MTS were having the same qualifications as 10th pass, but it has been wrongly mentioned that the Applicant did not fulfil the educational qualifications for other posts as well therefore, the case of the Applicant was not at all properly considered if other points are seen because it is an admitted fact that the Applicants points were quite high in the merit list.
5. Having heard the learned counsel for the parties and perusing the documents on record, in order to examine the case of the applicant for consideration in the light of the prayer, we may highlight the CRC report, clause 8 of which reads as under :
8 8(Eight) belated cases as per details given in Annexure-B are examined by the members of the CRC to check the feasibility of consideration in accordance with the instructions and guidelines issued by the nodal department. As per Instructions and guidelines issued from time to time by DOP&T circulated by Postal Directorate, some cases are more than 15 yr old. The members of the Committee observed that these cases are too old and in few cases like Sh. Kunal uppal & Sh. Ved Prakash there are other source of income/earning member in the family of the deceased employee. Since, the family has survived so many years from the death of the deceased and these cases no more fall in the category of Indigent cases. The members of the Committee further observed that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the deceased to relieve from economic hardship. The very fact that the family has been able to manage somehow, all these years normally be taken as adequate proof that that family had some dependable mean of subsistence.
The ruling contained in the following judgments were also kept in view while considering cases of compassionate appointments:-
7 OA No. 518/2021Item No. 76 (C-4)
(i) The Hon'ble Apex court in its ludgement dated April 8, 1993 in the case of Auditor General of India and others vs. G. Ananta Raleswara Rao (1994) 1 SCC 192] has held that appointment on grounds of descent clearly violates Article 16(2) of the Constitution; but if the appointment is confined to the son or daughter or widow of the Government servant who died in mess and who needs Immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread winner to relieve the economic distress of the members of the family, it is unexceptionable.
(ii) As per Hon'ble Supreme Court's Judgment dated may 4, 1994 in the case of Umesh Kumar Nagpal v/s State of Haryana and others (JT1994(3) S.C 525) has laid down the following Important principles in this regard :
a) Only dependents of an employee dying in harness leaving his family in. penury and without any means of livelihood can be appointed on compassionate ground.
b) The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency.
c) Offering compassionate appointment as a matter of course Irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally Impermissible.
d) Compassionate Appointment cannot be granted after lapse of reasonable period and it is not a vested right which can be exercised at any time in future.
(iii) The Hon'ble Apex court has held in Its judgement dated February 28, 1995 in the case of the Life insurance Corporation of India vs. Mrs Asha Ramchandra Ambekar and others [JT 1994(2) 5.C. 183] that the High Courts and Administrative Tribunals cannot give direction for appointment of a person on compassionate grounds but can merely direct consideration of the claim for such an appointment.
(iv) Hon'ble CAT, Jabalpur bench order dated 17.03.2009 OA No.708 of 2008 in the matter of Kamlesh Trivedi vs. Union of lndia & others in its judgement that" The family is not found to be in penury conditions and there were more indigent person than the applicant 8 OA No. 518/2021 Item No. 76 (C-4) Thus the Tribunal would not be justified to reverse these findings recorded after complete appreciation of factual aspect."
(v) Order dated 19.04.2010 of CAT. Ahmadabad bench in OA No.172 of 2009. In the matter of Shri Brijesh kumar D. Patel Vs. Union of India & Others in its judgement that When subsequent to the death of the bread earner, sufficient time has passed and bereaved family has maintained themselves, there can be no direction to the competent authority to consider the claim for compassionate appointment. This is a factual finding and the Tribunal will not enter into merits of the same because whether the deceased left the family in penury and without any means of livelihood has to be decided by competent authority and the courts can not normally interfere. Compassionate appointment cannot be claimed by way of right or as heritable public office.
(vi) In the case of HSEB V/S Krishna Devi(JT 2003(3) SC485) it was held by the Hon'ble Apex Court that compassionate appointment cannot be claimed as a matter of right against guidelines prescribed by the government.
The above mentioned 8 cases (Annexure-B) more than Syear old were considered by the CRC and not recommended for appointment on Compassionate Ground in view the facts detailed above.
6. Further, Clause 11(b) is also relevant for consideration in the present matter.
7. On the basis of the report itself, prima facie, it appears that the name of the applicant was at Sl.
No. 7 and being 10th pass he did not fulfill the educational qualification for the post of PA/SA, but his points were quite high in the merit, which is an 9 OA No. 518/2021 Item No. 76 (C-4) admitted position. The applicant's name is shown at Sl. No. 7 in Annexure - B (page 38 of the OA). It is evident to note that despite the applicant being higher in merit, even though he did not fulfill the educational qualification for the post of PA/SA, his case could not have been ignored for the other posts. It is not the case of the applicant that he was claiming the post of PA/SA. It is also not in dispute that the applicant fulfills all eligible qualifications vis a vis educational qualifications for other post i.e. MTS, which ought not to have been ignored while adjudicating the case of the applicant for the post of MTC. The CRC has set aside his candidature merely on the pretext that he is not eligible for the post of PA/SA. This has never been the case of the applicant.
8. It is well settled law by the Hon'ble Supreme Court that even though the compassionate appointment cannot be claimed as a matter of right, it is based on the financial exigencies and 10 OA No. 518/2021 Item No. 76 (C-4) circumstances of each case and the applicant cannot seek compassionate appointment on a particular basis that is not even the case of the applicant herein. The applicant, being higher on merit, was entitled to be considered for a lower post atleast for MTS for which he fulfills all educational qualifications. Even otherwise, the stand adopted by the respondents in the counter affidavit that no commitment was given to the applicant at any point of time to entitle him for grant of compassionate appointment. However, on the basis of it, if we go by the report once, it shows that the applicant was higher on merit and his case could not have been ignored merely on the ground that he does not fulfill the educational conditions for the post of PA/SA.
9. In view of the above, the rejection orders dated 13.06.2019, 02.12.2019, 27.12.2019 and 11.02.2020 are hereby quashed and set aside. The competent authority amongst the respondents are 11 OA No. 518/2021 Item No. 76 (C-4) directed to consider the case of the applicant for any other suitable post vis a vis MTS and other analogous posts which he may be entitled to in accordance with the vacancy position. The aforesaid exercise shall be completed within three months from the date of receipt of a certified copy of this order. In the event, the applicant is considered to be eligible, he should be offered an offer of appointment on compassionate grounds.
10. With the above directions, the OA is disposed of. Pending MA, if any, stands disposed of accordingly.
There shall be no orders as to costs.
(Manish Garg) Member (J) /nk/