Central Administrative Tribunal - Mumbai
Shrikant H Yeware vs Bharat Sanchar Nigam Limited on 10 April, 2019
®
i OA489/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI _
ORIGINAL APPLICATION No.489/2018
Dated this the 10° day of April, 2019
CORAM: R.N. SINGH, MEMBER (JUDICIAL)
Shrikant S/o Haridas Yeware,
Age: 33 years, Occu: Nil,
R/fo : Gaviipura Near Petrol Pump No.2,
Nanded, Dist: Nanded 431601.
Applicant.
{Advocate Shri Govind Solanke for Shri M.G. Biradar }
Versus.
1. The Union of India,
Through The Principal Secretary,
Department of Telecommunication,
20, Sanchar Bhavan, Ashoka Road,
New Delhi-Liocel.
2, The Assistant Director (D.E.&R),
C.G.M.M.H. Telecom Circle,
Fountain Telecom Building No.It
M.G. Road, Hutatama Chowk, Fort,
Mumbai-400 C01.
3. The General Manager (Administration),
Bharat Sanchar Nigam Ltd,
Telephone Bhavan, Nr.Collector Office,
Nanded -431601.
Respondents
{Advocate : Shri Sampanna Walvalkar for R-1 & Shri
V.S. Masurkar for R-2 and 3 3
Bo OA/S9ROIS *
ORDER
Per : R.N. Singh, Member (9} This OQ.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs :-
Ps 2 a}. This Hon'ble be pleased toe oasll case From the respondent:
fhe same direct. the vesoondente™ to consider the ease of the applicant fer compassionate ws \\ appotnnens by quashing and setting aside the . communication dated 20/03/2012 and 11/03/2016 whereby the request of the applicant for apoointment on compassionate ground is turned Bb). Cost of the apolication be provided for.
a) Any other and further order as this Hontbie Tribunal deems fit in the nature and circumstances of the case be passed."
:
2. The brief facts of the case as contended One | © behalf of the apolicant are that Late Haridas Yeware, was working under Respondent No.3? as a Lineman had taken voluntary retirement due to long iliness and had 93,06.2003. Immediately, thereafter the bso expired on applicant had applied for appointment on compassionate ground on 22.01.2005. The Welfare Officer visited the applicant's house and has submitted a report dated {Nil} {Annexure A-2). In is Stated that Respondent 3 | OA/489/2018 No.1 ealled for information vide his letter dated 27.05.2009 (Annexure A-6) from Respondent No.2, as to why the widow of the deceased employee (mother of the applicant) has not applied for appointment on compassionate ground and asked about the working tt } status of all the dependants, Marital status, Hou e tes # Income certificate ete. In reply, aA report was sent indicating therein thet the widow due to her health problems had requested for appointment of her son vide her application dated 23.07.2009 {Annexure A-7). As per report dated 28.02.2908, the applicant has passed 5 standard and he is eligible for appointment on compassionate ground and he has also obtained 66 points as per the new weightage point system.
3. On 05.01.2011, Respondent No.l asked Respondent No.2 that if the proposal of widow of the deceased employee comes they they will consider the same as she has the first preference for appointment as' per the scheme. Thereafter, mother of the applicant again filed an application dated 19.04.2011 (Annexure A-1LL}). requesting therein that since her age was near about 57 years and due to health issues she is unable to perform the job as such the proposal of her son may 40 OA/489/2018 be considered for appointment on compassionate grounds. The applicant has also sent an application dated 19.04.2011 (Annexure A-12) stating therein that his mother is unable to do the job and also requested for considering His candidature for appointment on compassionate ground. In response, the respondent No.3 vide letter dated 02.05.2011 directed the applicant to produce the, proot of age and other dootiient's ae were duly supplied by the applicant. The ereafter, th respondents vide Eneir letter dated 11.03.2016 (Annexure A~17) has rejected his case for appointment on compassionate grounds.
4. Thereatter, the applicant has also approached the Hon'ble High Court of Aurangabad by filing' Writ Petition No.4280/2017 which was disposed of vide order oO.
dated 14.03.2018 by Hon'ble High Court with the following directions:
"3. Fhe writ getition is disposed of with diberty te the petitioner te avail of the alternative remedy berore the Central Administrative Tribunal. Ali the contentions of the parties are Keot open. Mr. Deshmukh may plead before the Cantrai Administrative Tribunal about the time post in prosecuting the present writ petition."
S.C Thereafter, the applicant approached this Tribunal by filing the present OA alongwith MA No. 8 OA/489/2018 (Nil) for condonation of delay in filing OA. &. Opposing the claim of the applicant, the respondents 'have filed reply stating therein that the applicant has challenged the orders dated 26.05.2012 and the present OA has been filed on 10.04.2018 as 'such there is a delay of about six years and after writ petition which is filed in 2017, it taken into § - consideration even then the delay of about five years in approaching the Hon'bie high Court. It is submitted that CGA applications received are to be scrutinized by the concerned SSA/Unit and prepare check list according to the weightage point system for the purpose of assessment of indigent condition of the family. Thereafter, the applications completed in all <= & respects are to be placed before the Circle High Power Committee for consideration. However, the appointment is limited to the number of vacancies available under CGA quota for that particular financial year based on the weightage points se ed by the applicants. Tt is.
stated that the father of the applicant has retired on uJ medical grounds on 16.07.2002 and after getting invalid pension on medical grounds he expired on Ls BS .07.2003. The application made by the applicant
6. OQAMBO/2018 | dated O7.02.2005 is belated and also after his father was a pensioner and hence he is not entitled for any appointment on compassionate grounds. Moreover, in the Nomination certificate issued by Tahasiidar, Nanded on Q3.22.2003 the age of Smt.Rukhminibai w/o of Haridar fers S. Yeware sg 42 years only whereas in the co representation cated 19.04,2011 her age shows as 57 years. As such the applicant has not come with clea hands before this Tribunal and is trying te mislead the Tribunal by. submitting a wrong information. Further, in the medical certificate issued by Civil Surgeon, Nanded the age of mother of the applicant is oo ot shown as 61 years.
Fe. The respondents have also placed reliance on several judgments like, P.S. Sadasivawaswamy Vs. 8/68 f Tamil Nadu AIR 1974 SC 2271, Jacab Abraham ¥ Others AT. Full Bench Judgments 1994-96, Ram Chandra Samanta vs. UOI 1994 (26) ATC 228, $.S. Rathore vs. S/o M.P. i983 (2) ATC 5321, Bhoop Singh vs. UOI IR 1992 sc 1414, Secretary to Got. Of India ve. Shivaram M. Gaikwad (1995) 30 ATC 635, Ex. Capt. Harish Uppal vs. UOr 1994 (2) SLI 177, i. Chandra Kumar vs, UOl 1897 (2) SER {SC} ' i, AIR 19S Sc 564 Pattaram vs. Union of India, 1996 wt a ial 'se ae OA/489/2018 Lint 1127 (SC) UOI vs. Bhagnoar Singh, (199) 8 SCC 304 Ramesh Chand Sharma vs, Udhan Singh Kamal & Ors., 2002 (5) SLR (SC) 307 B. Parmasivan & Ors vs. UOI & Ors AT Act, 1985.
B. We have gone through the O.A. along with Annexures A~1 to A-18 and Reply filed on behalf of the respondents.
8. We have hear the learned counsel for the applicant and the learned counsels for the respondents and carefully considered the facts and circumstances, law points and rival contentions in the case.
Findings
10. The facts of the case are not in dispute. The respondents are also well within their rights to rt consider the case of applicant as per the policy and it' dees not create any statutory right to the applicant. The applicant after the death of his father 22.96.2003, submitted an application dated 28.01.2005 for appointment on compassionate ground enclosing all the requisite documents. The Welfare Officer visited the applicant house and has submitted a report.
Thereafter, the Respondent No.1 called for information § OAMBo201R vide his letter dated 27.95.2003 from Respandent No.2 as to why the widew of the deceased employes {mother of the applicant) has not applied for appointment on compassionate ground and asked about the working status of all the dependents, Marital status, House, income certificate etc. In reply, it is infomred that the widow due to her health problems had requested for appointment of her son vide her application datege ly 23.07.2009 (Annexure A-?}. The applicant has passed 9° standard and he was reported eligible for appointment on compassionate ground as the applicant has obtained mn 6 points as per the new weightage point systen.
Thereafter, several correspondance have been made between the applicant ans the respondents and finally, the respondents vide their letter dated 11.03.2016.
(Annexure A-l7}) has rejected his wane fer appointment on compassionate grounds. Thereafter, the applicant filed a Writ Petition No.4280/2017 before the Hon'ble High Court of Aurangabad which was disposed of on 14.03.2018 with a direction to the petitioner to avail of the alternative remedy before the Central Administrative Tribunal.
di. There is delay of about six years and if writ li % OA/48O2018 =J petition which is filed ain 201 is taken into consideration, even then the delay of about five years in filing of the present OA. It is.further stated that appointment is limited to the number of vacancies available under CGA quota for that particular financial year based on the weightage points secured by the applicants. Further, the father of the applicant was retired on medical grounds on 1¢€.07.2002 and after getting invalid pension on medical grounds and he expired on 12.07.2003 as such application made by the applicant on 07.02.2005 is belated and also after his father was getting pension hence, he is not entitled for any appointment on sompassi onatie grounds. The apolicant has not come with clean hands before this Tribunal and is trying to mislead the Tribunal by submitting wrong information.
12. The Hon'ble Apex Court particularly in the case of 8.S. Rathore v. State of Madhya Pradesh reported in 1990 scC (L&S) 50 has observed that unsuccessive representations cannot extend the period of limitation. Para 20 and 21 of the said judgments is reproduced herein under i -
10 OAs489 2018 se order but on the Ra date of the original adver a Gate when the order of the higher authority where a statutory remedy is provided entertaining the appeal cr representation is 2 made and where no such order is made, though the remedy Aas been availed 7 & Six menths' eS Oe of the the rapresentation shall 3 :
be taken to be the date a cause of action shail be taken to have first arisen. We, 'hat this principle may remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
Zi. aa is appropriate to netice the provi _tumitation under Ssectiron 21 of Tribunals Ac. Sub Section {1 period of one year for makin ion and power of candonation period of six months has been sub-section (3) The rival tion has been taken away by therefore, as far as gevernment concerned, Article 8&8 may not be dew of the apecial limitation. gqutside the purview of the ribunais'. Act shall continue ned i by Article 58,"
On the point of Limitation, the Hon'ble Apex Court has reiterated its earlier view on this matteey.
reported in JT 2011 (3) sc 254 Re; Guestion@)
13. fb is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/ Tribunal as early as possible. if a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly for grant of any relief an the basis of such belated application would lead to serious administrative complications to the amployer 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 and held as under:-
sase of Union of India & Ors. v. A. Durairaj Tho ODIARGPIOPR occ or two from the date of cause of action, the employer will be a great disadvantage of effectively contest or counter the claim, as the officers utho dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even Uf no period of limitation is prescribed, any belated challenge would be Hable to be dismissed on the groiind of delay and laches. -
14. The question of limitation being nullified by filing an OA and getting an order with direction to decide the panding representation was also examined by the Hon'ble Apex Court in the case of Union of India Oy. 'MK, Sarkar (JT 2009 (15) SC 70: 2010(2) sce 58) and held as follows:-
"The order of the Tribunal allowing the £ ti € Respondent without examin hts, and directing appellants te eonsider his representation has given ri gnnecessary litigation and aveidabie complications.
uy x 9 When @ belated representation in regard to @ =: 2 is considered with a direction By buna do so, the date of such not be considered as Furnishing a f action for reviewing the 'dead* barred dispute, The issue of chee should be original ty , cr ID 83 Jwe
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nth os sa o wd fr rho OQ & us me OG es 12 OA/489/201 8 'dead' or 'stale' issue or dispute, the Court/Tribunal should put an end te the matter and shouid net direct consideration or reconsideration. ify the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it cdesar that j.such consideration will be 'without prejudice to any cantention relating to dimitation or delay and laches. Even if the Court does mot expressly say so, that would be legal position and effet."
Therefore, in the light of the discussion made above the present OA is liable to be dismissed on the ground of delay and latches. However, I have though '© necessary to consider the claim on merits as well.
15. The Hon'ble | Supreme Court in the case of General Manager, SBI and Anr. v. Anju Jain {(2008) 8&8 scc 475}, has held that appointment on compassionate grounds is not a right. However, the scheme of compassionate appointment iS an exception and the same is to be provided strictly in accordance with the. terms and conditions of the scheme. The philosophy behind giving compassionate appointment. is just to help the family in harness to get over the immediate ¥ crisis dus to the loss of sole breadwinner. This category of appointment cannot be claimed as 4 matter of right after certain period, when the crisis is over. More so, the financial status of the family is ct o oy
3) ® x ct "7 QD a C3 *y ip © hh at ay G os ey tacit et by D also to be looked in SK .
43 OA/489/2018 employer while giving compassionate appointment and such appointment cannot be conferred contrary to the Parameters of the scheme.
16. The Hon'ble Apex Court in the case of Santosh Kumar Dubey v. State of U.P. & Ors. {2009 {6} scc P OQ oe 3 @ ad oH Ee o a i ct 481}, held that the to provide immediate financial assistance to family which has lost its bread winner and request for compassionate appointment should be proximate to employee's death and compassionate appointment is not a bonanza or another source of reeruitment, and it cannot be Cy bee dD oy.
ad .
ib th yy S a matter of right.
i?. The Hon'ble Supreme Court in State Bank of India v. Raj Kumar, (2010) 11 8CC 661, elucidating the nature of the scheme of compassionate appointments ab tf erved: "Tt is now well settled that appointment on compassionate grounds is not a source of recruitment.
€ On the other hand it is an exception to the general rule that recruitment to public services should be on é the basis of merit, by an open invitation providing equal cpportunity Lo all eligible persons Lo | participate in the selection process. The dependants of employees, who die in harness, do not have any 14 = special claim or right to employment, the concession that may under the rules by a separate or family of the daeceased to get financial erisis. The obaim be extended by scheme, for OA/M4ES2O1S:
' except by way of the employer to enable the sudden over the compassionate appointment is therefore traceable only to the scheme framed by the employer is no right whatsoever outside such is. The Hontble Supreme Court in Administration Department & Anr. vs. for such emoloyment and there scheme."
the case of Lecal M. Selvanayagam 6 Kumaravelu, Civil Appeal No.No.2206 OF 2006 decided on eed 05.04.2021 underi-~ observed a5 "Tt has been said a number of times earlier Bet it needs to be recalled here that under < the scheme of compassicnate appointment, in case of an employee dying in harness one of his eligible dapendents is. given a job with ee the sole objective ta provide immediate © succour to the Family which may suddenly find itself in aire straits as a result of the death of the bread winner. An appointment made many veers after the death of the employee or without due consideration of the financial resources aveilable to his/her depandents and the financial deprivation caused to the dependents as 4a result of his death, simpiy hecause the claimant happened to be one of the dependents of the deceased amoloyee would be directiy in canflict with Articles i¢ & I8 oF the Censtitutrion and hence, Quite bad and illegal. fn dealing with cases of cempdssionate apoointment, it is imperative to keep this vitel aspect in mind."
19. In another decision in the case of Jagdish wee cette tteee etre tte eet cere cerned siti deg eee ceeasteged Ts Wevereeeees : : tos GA/489/2018 Prasad v. State of Bihar (1996) 1 SCC 301 the Hon'ble Supreme Court has observed as under:-
"3. Fh is poianan for the appellant thet when his father ed in harness, the appeliant Wa minor; che. compassionaet & continue ta subsist even ti ther er eea ee the cour rt i aS a at ancede to the contention. f t of appointment of a dependant of the eased employees who die in harness i ieve unexpected immediate (are Press caused to the famil he ning member of the i by © AB ta 4 ind 4D FY a Ct bs Of 3 hen Be ye ™ a hin ew & 2 Ed Bet <' & Oo fin GB Qh be fee SO i "ry Sb fea, ww Lf 4, ~ ey BoA RD a bea f ty a ist) ct {BoRy S gh ey ty o ts Fu.
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20. In the case of Umesh Kumar Nagpal vw. State of Haryana and Ors, reported in JT 1394(3)sc 5258 it has
-@® been observed that the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family ef the deceased Erom financial destitution and to help it to get over the emergency. Relevant portion of the Said judgment is reproduced below:-
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6 £2 my s het gS "yt \ ced ices qh 19 OAMESROTS in respect of the scheme, the grounds raised in this OA deserve no further consideration. Therefore, in light of the discussions made above the applicant failed to establish even a prima facie case hence, OA is liable to be dismissed on merits and also on ground of delay and laches. Accordingly, the OA dismissed on both counts. No order as to costs.
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