Central Administrative Tribunal - Mumbai
Kirankumar Mulchand Meshram vs Posts on 1 December, 2022
OA, No s8essoss Gerla Central Administrative Tribunal * aN Mumbai Bench Y, Camp at Nagpur Order reserved on 20° October, 2022 Order pronounced on 1" December, 2022 Hon'ble Mrs. Harvinder Kaur Oberoi, Member () Kirankumar Mulchand Meshram Khandelwal Nagar, Post Kanhan, Teh Parsheoni Age 35 years, Occupation NIL Distt. Nagpur ~ 441001 | » Applicant (Ms. Usha R Tanna, Advocate) Versus 1, Union of India through Secretary, Department of Posts, Dak Bhawan, New Defhi- 1 2. Tne Director of Accounts (Postal) Akashwani Square, Opp. Nyay Mandir, Civil Lines, Nagour -- 10 Lad 4 Fk res 3 5 os, ote See we a Assisiant Director Postal Services (Rect. afm Thiet 2 AS. sive fle wit Nitavhaenchten dtlaccdé ofa Chief Post Master General, Maharashtra Cirole Minbai 406 G01 iMdy. Bhaskar 2). Pandit, Advocate) ORDER
The applicant has Hled the instant O.A. under sechon 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"T} Issue appropriate directions directing the Respondents more specifically the Respondent No.2 to consider the Application dated 25/09/2014 and reminders dated 09/01/2015 and 27/01/2015 and pass reasoned and speaking order.
2) Issne appropriate directions to the Respondent No.2 to expeditiously grant compassionate appointment to the Applicant in the Respondent Dept as per the circular governing the compassionate appointment, 3} Any other relief deem fit under the facts and circumstances of the case be granted in favour of the Applicant."
a 2, Briefly stated, the facts of the case are that Mulchand Meshram, who was working as a Sorter in the office of respondent No.2, expired on 30.04.2006. Vide the letter dated 21.06.2006, the respondent No.2 required the family of the deceased to obtain succession certificate from the competent court of law, so that the retiral benefits, etc. ve released te the legal heirs. Thereupon, the Succession Pxcded wy isd haters shea « Case No. 82/2005 was Aled before the < OLA. No. gag/ sant issued on 21.08 2008, which was ater on modified on 26042011 by the Court of Jomt Civil Tudge, Senior x * wu SEO canine Som, he nee ee) sion ; Nagpur. Thereafter, the applicant applied for appoint iment on cormpassionate grounds on 25.09.2014. On applicant again applied for compassionate appointment, | by reminders dated 09.01.2015 and 27.01.2015, which when not decided, led to filing of O.A, No.223/2016 before this Tribunal. Vide order dated 24.09.2016, the said G.A. was disposed off directing the respondents to consider the pending representation dated 25.09.2014 and reminder dated 09.01.2015. This direction was issued without prejudice to the respondents' right to raise objection about limitation in subsequent proceeding, if any. The respondents thereafter passed an order dated 31.10.2016 rejecting the case of the applicant for compassionate appointment, Hence, this OLA.
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3. On the contrary, the respondents filed their counter reply, opposing the case of the applicant. It was contended that in complying with the directions of Tribunal in OLA. No.223/2016, the case of the applicant wes considered by the -esponden' duly constintng a Circle Relaxation Committees (CRC) as per the Rules and the ssid CRC did < Pa eee oe nt oF wrong ee 4 not recommend his case on account of usexciginable delay iM applying the appointment. The decision so teken was communicated to the apolicant in terms of letter dated
4. Learned counsel for applicant argued that since the CRC considered applications up to 2014 only, it is umequivocal that the case of the applicant has not been t., considered by the respondents in terms of the order passed by the Tribunal on 24.09.2016 in O.A. No.223/2016, § is suomitted that the applicant had already explained the delay in an earlier O.A, and afer considering the explanation, an order was passed, directing the respondents to decide the pending representation and reminder.
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5. Learned counsel' Tespondents submitted that the CRC in its meetings held on 05.01.2016, 06.01.2016, 31.03.2016, 06.04.2016 and 15,05,.2016 sad examined the casé of the applicent along with other 191 recnests received up to calendar year 2014 for compassionate appointment against 59 vacancies (PA-23 + Postman-23 + MTS-13), Le, 5% direct recruitment quota vacancies earmarked for compassionate appointment. Accordingly, the learned counsel defended the impugned order and submitted that nothing is flouted in i.
"SEMANA Le ey hems NaS
6. Heard the learned counsel for the parties at length be jeun Dis and perused the entire record.
ae 7, Compassionate appointment is a social security scheme launched by the Government to grant appointment to a dependent family member on compassionate basis when a Government servant dies while in service or retires on medical grounds. The objective of the scheme is to provide immediate financial assistance to the family, who is left in poverty and without any means to sustain their livelihoad. The issue of compassionate appointment derives its origin from Article 16 (2) of the Constitution of India. This type of matter was considered by the Hon'ble Supreme Court in State ef Harvana & others v. Rani Devi & another, 1996 SCALE (5) 338, wherein it was observed that if need not be pointed out thet claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of Constitution, However, such clair is considered ag reasonable and permissible on the basis of sudden crisis occurring in the family of such employee, who has served the State and dies while in service. That is why if is necessary for the authorities to frame rules, regulations or to issue such administrative orders, which can stand the test of Articles 14 & 16. Thus, ifan employee dies while in Hem No ds service, then, according to rule farmed by tke Central Government or State Government to a appoint one of the dependents, shall not be violative of Articles 1d & 16 of ) oy ine Constitution because it is to mitigate the hardship due to the death of the bread eamer of the family and sudden musery faced by the members of the family of such employee. While reiterating the purpose of making appointment on compassionate ground, the Apex Court in National Institute of Yechnology & others vy, Niraj Kumar Singh, (005) 2 SCC 481 emphasized thar all public appointments must be in consonance with Article 16 of the Constitution, Exceptions carved out, therefore, are the cases where appointments are to be given to the widow or the dependent children of the employee, who died in _hamess, Such an exception is carved out with a view to see that the family of the deceased employee, who has died in harness, does not become a destitute, The question offen arises whether it is a legal right. The Apex Court has emphasized that the appoistment on compassionate ground cannot be claimed as a matter of right, In Mumtaz Y unas Mulanl v. State of Maharashtra (2008) 11 SCC 384, the Apex Court has adopted the principle that appointment on compassionate ground is not a souree of recruitment, but a means to enable the fami Uy of the deceased to get over s SUCUSM Pnernimal crisis, Cha. WHS8o/ 2021
8. The Hon'ble Supreme Court in Director of Treasuries in Karnataka & another v, ¥, Somyashree, 2021 SCC Online SC 704 had occasion to consider the principle governing the grant of appointment on Eas compassionate ground. After referring to its sarller decision in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617, the Apex Court has summarised the principle governing the grant of appointment on compassionate gronnd as under:-
"a) that the compassionate appointment is an exception to the general rule:
(i) that ne aspirant has a right to compassionate appointment;
(in) the appointment to any public post in the service of the State has to be made on the hasis of the principle in accotdance with Articles 14 and 16 of the Constitution of India:
Gv) appointment on compassionate ground can be made only on fulfilling the norms Isid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;
(v) the norms prevailing on the date of the consideration of the ap plication should be the basis for consideration of claim for compassionate soy ey won FF apooiniment.
CLA. No.s8a/eoa4 g, In terms of O.M. dated 16.01.2013 issued by the Department of Posts, the concept of cor passionate appointment is lar gely related to the need for immediate od assistance to the family of government servant in order to relieve it from sconomic distress. The very fact that. the i farnily has been able to manage somehow all these vears should normally be taken as adequate proof that the family had some dependable means of subsistence. This is the circular, which the respondents have referred to while passing the imougned order in complying with the directions of the Tribunal in OLA. No.223/2016. The impugned order reads thus:
"Your request was considered by the Circle Relaxation Committee (CRC) in its meeting held on 05.01.2016, 06.01.2016, 31.03.2016, 06.04.2016 and 13.05.2016 for appointment on compassionate ground. The CRC considered 191 requests upto calendar year 2014 for compassionate appointment against 59 vacancies (PA-23 + Postman-23 + MTS. 13} Le. 3% of Direct Reeruitment Quota vacancies for the calendar year 2014 earmarked for compassionate appointment, AS per instructions under para 9 (a) of Dte's order no. 14014/02/2012-estt. (D) dtd. 16.01.2013, ihe concept of compassionate appointment is largely related to the need for immedigie assistance to the family of Government servant in order to releve it ERED hy cis XS PIMs FE yy mcg yet ' pa he from sconomis istre ress, Ts yery feet thar the . Hy - thee ak 2 L& "es all these family has | been able ig O.A. No.g8o/eant that ihe family had some dependable means of subsistence, it is observed by the Circle Relaxation Commities {CRC} that im your case there is unexplaina able delay in applying for compassionate appointment and therefore the commitiee has come _ to the conclusion that instructions in the para above are applicable in your case and therefore your case is not recommended by the CRC."
10. From a perusal of the impugned order, it is incontrovertible that the CRC considered 191 requests received up to calendar year 2014 for compassionate appointment against 59 vacancies (PA-23 + Postman-23 + MTS-13), ie, 5% direct recruitment quota vacancies sarmarked for compassionate appointment. However, in the case of the applicant, as observed by the CRC, there wes unexplainable delay in applying the compassionate appointment, Accordingly, it came fo the conclusion that since the Instructions contained in order dated 16.01.2013, referred to above, are applicable in his case,.the CRC did not recommend for compassionate appointment.
ii, it is seen that the father of the applicant expired in 2006 and he, for the first time, applied for r coripassionate appoiniment in 2014, Le, after approximately 8 year 24 : SO MAaint phot <4 ey axed x {8 OL GOUDT That the Trimonal issned aa o gt ap eres ere cn + he ayy 4 APoTS CAMTHOT Be any i at directions to the respondenis to dis Be "ts ees af tha nandiae OS OF TS PEL ewes"
ie, iQ representation and reminder but those directions were issued without prefudice to the respondenis'" right to raise objection about limitation in subsequent proceeding, if ¥ iz. To cover up the issue of limitation, the applicant has filed one M.A. No.335/2021 seeking condonation of delay in fling the O.A. The prayer reads thus:
"8. Prayer. It is therefore humbly prayed that this Hon'ble Tribunal be pleased to condone the delay from 31.10.2016 in the interest of justice."
13. From the perusal of the order of this Tribunal passed in an earlier O.A., it is clear thet the issue of limitation was very much open for the respondents and they have correctly dealt with, The applicant has not given any plausible explanation in the M.A, with regard to delay ir we filmg the O.A. and he is seeking to condone the del ay of very long period, which is not permissible in terms of the dictum of Hon'ble Supreme Court in Union of Yadla & others v. A. Durairaj (dead) by LRs, JT 2011 ¢ ee Cy ¢ 254, Wherein it has s been raled as under:-
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3. i) a8 well aettled thet SQYORE Woo fess RA a ec obs 3 aggrieved by nonsp promotion or non-selection should Ae me} o Maat approach the Court/Tribunal as early as possible, If 'oy aN a person having a justifiable grievance allov S the nae matter to become stale and appreaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead ta serious administrative complications to ihe employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years, Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches, A haere nate nF
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action), This Court had occasion to examine such situations in Union of India v. MB Sarkar 2010 (2) SCC 88 and held as follows:
The order of the Tribunal allowing the first application of Respondent without examining q . wt:
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ine mers, and directing Appellanis {fo Sete fe a rattan yy meteres ~ s comsider his represerfation bas given rise {to UMMSCESsaTy LIQRHOT anc : is. When « belated ooresnre bs a fetate' mer nee regard tA Stais OF iS considered and decided, m vormplance eee pout in its meetings beld on O5.01.2016, 08.01.2016 2016, 06.04.2014 With a direction by the Court/Tribunal to d sa, the date for such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time- barred dispute, The issue of lmutation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction, Nelther a court's direction to consider a representation issued without examining the merits, nor a decision given in complisnce with such direction, will extend the limitation, or erase the delay and laches. A | Court or Tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. It is with reference to a 'dead' or 'stale' issue or dispute, the Court/Tribunal should put an end toe the matter and should not direct consideration or reconsideration, If the court or Tribunal deciding to direct 'consideration' without itself « examining of the merits, if should make that such consideration will de without © tO any contention relating te tion or delay and laches. Even if the ou ft do oes not expressly say so, that would be he legal position and effect", it clear efudic imuta pr lin Cov Even on merits also, the soplicant has no case. The item No iS vacancies (PA-23 + Postman-23 + MTS-13), Le., 8% divest on ", oF ?
\ recruitment quota vacancies earmarked for compassionate } Mo Fees appointment. Since there was unexplainable delay in staking the clairn for compassionate appointment, it did not recommend the case of the applicant, keeping in view the instructions contained in letter dated 164)1.2013 issued by the Department of Posts 15, In the facts and circumstances of the case, [ do not incline to condone the delay occurred in filing the instant OA. Accordingly, MLA. fails and stands dismissed. As a corollary thereto, the O.A, is also dismissed. There shall be no order as to casts, ( Harvinder Kaur Oberal ) Member () fsunil/