Central Administrative Tribunal - Hyderabad
B Durgaprasad Naik vs Dept Of Posts on 31 December, 2019
Central Administrative Tribunal
Hyderabad Bench
OA No.176/2019
Hyderabad, this the 31st day of December, 2019
Hon'ble Mr. B. V. Sudhakar, Member (A)
B. Durga Prasad Naik
S/o Late B. K. Naik, Aged 22 years
Occ: Un-employee, Sugati Colony
CHIALAKALURI PETA - 522 616
Guntur District, AP. ... Applicant
(By Advocate: Shri B. Gurudas)
Vs.
1. Union of India, rep. by
The Secretary to the Govt. of India
M/o Communications & IT, Dept of post
Sansad Marg, New Delhi - 110 001.
2. The Chief Postmaster General
Andhra Pradesh Circle
Vijayawada - 520 013.
3. The Postmaster General
Vijayawada Region
O/o The Chief Postmaster General
Andhra Pradesh Circle
Vijayawada - 520 013.
4. The Superintendent of Post Offices
Narasaraopet Division
Narasaraopet - 522 616. ... Respondents
(By Advocate: Mrs. B. Gayatri Varma, Sr. PC for CG)
OA 176/2019
2
O R D E R (Oral)
2. The OA is filed in regard to request of the applicant for Compassionate Appointment.
3. Brief details of the case are that the applicant's father, while working in the respondents organization as Postal Assistant, died on 16.07.2008. On the death of the employee, the applicant's mother applied for Compassionate Appointment, which was processed and rejected on 08.12.2016. Consequently son of the deceased employee, i.e., applicant, sought Compassionate Appointment, by making a representation on 22.06.2017 with required documents. However, the request for Compassionate Appointment was rejected on 13.08.2018 without giving any reasons for such rejection though the applicant secured more than 60 marks. Aggrieved, OA has been filed.
4. The contentions of the applicant are that the rejection order dated 13.08.2018 is not a speaking order. The applicant's family has no movable or immovable property or any other source of income. Applicant has studied upto Intermediate, and being the only son, has to take care of his mother and perform the marriage of his sister. Unless the applicant is employed, he cannot discharge the social responsibilities as is expected of him.
OA 176/20193
5. Respondents, in their reply statement, have stated that the Compassionate Appointment of the mother of the applicant was examined by the Circle Relaxation Committee on 29.04.2014, and kept pending for want of verification of genuineness of the Transfer Certificate submitted. When approached for verification of the Transfer Certificate, Head Master of ABM School of Vinukonda where the applicant's mother studied had informed Inspector Posts that the records have been stolen and a police compliant has been lodged in this regard. The Head Master, however, informed that the Certificate is genuine and he has made an endorsement to this effect on the copy of the Transfer Certificate. Later, the District Education Officer, Guntur informed vide letter dated 25.02.2016 that as per the Mandal Educational Officer, Vinukonda letter dated 19.01.2016, the Transfer Certificate produced by the mother of the applicant is not genuine. On obtaining this information, Circle Relaxation Committee met on 01.12.2016 and rejected the case of the applicant's mother for Compassionate Appointment. Later, when the applicant made a request, the same was examined and the applicant got 59 merit points as per the relevant rules in processing Compassionate Appointment. The Circle Relaxation Committee met on 24/25.07.2018 and considered the case of the applicant along with others, but rejected vide letter dated 13.03.2018 on grounds that the OA 176/2019 4 claim of the mother was rejected for producing a bogus Transfer Certificate.
6. Heard both the counsel and perused the pleadings on record.
7. (I) The reply statement submitted by the respondents indicate that the Respondent No.4 has recommended the case of the applicant's mother for Compassionate Appointment, because the family had no source of income and that the main onus fell on the shoulders of the widow to educate and get the children married with the meager pension received. However, due to submission of a bogus Transfer Certificate, her case was rejected and also on the same ground in the case of the applicant. Thus, the respondents have found the family of the deceased employee to be in indigenous circumstances but because of the submission of a bogus Transfer Certificate by the mother of the applicant, the requests of the mother and the applicant have been rejected on the same ground.
(II) Further, respondents, vide impugned letter, rejected the request of the applicant's Compassionate Appointment, which reads as under:
"Circle Office vide letter No.RE/I-26/2017-18/II dated 02.08.2018 received through RO Vijayawada letter No.ST- 31/CRC/MINUTES/24.07.2018 & 25.07.2018 dated 09.08.2018 has informed that your case is considered but OA 176/2019 5 rejected by the Circle Relaxation Committee held on 24.07.2018 & 25.07.2018."
The impugned order is a non-speaking order and with no any reasons for rejection. It is well settled in law that an order which is non-speaking and not reasoned, is invalid. Besides, as per the Hon'ble Supreme Court Judgement in Mohinder Singh Gill & Anr. v. Chief Election Commissioner, New Delhi & Others, AIR 1978 SC 851, the respondents cannot improve upon the impugned order by stating that the rejection of the applicant's request for Compassionate Appointment was on the grounds of production of bogus Transfer Certificate by his mother. The learned counsel for the applicant has submitted that the last candidate considered for MTS post, while evaluating the request of the applicant, was 52 points and that the applicant got 59 points as per the respondents submission in the reply statement. Therefore, the applicant is eligible to be considered on relative merit points.
(III) Compassionate Appointment has to be offered to the dependant family members of the deceased employee to meet sudden crisis due to the loss of the bread winner. The respondents have processed the cases for Compassionate Appointment, but rejected the request on the ground of submission of bogus Transfer Certificate by the mother of the applicant which goes against the spirit of the OA 176/2019 6 respondents in letter No.17-17/2010-GDS, dated 30th November, 2015, wherein, it was clarified that even in cases where the GDS employee is involved in fraud, but expired before award of penalty, the children of such employee on their demise should not be denied the Compassionate Appointment. The extract of the aforesaid clarification is as under:
"No.17-17/2010-GDS, Government of India, Ministry of Communications & IT, Department of Posts, (GDS Section), Dak Bhawan, Sansad Marg, New Delhi - 110001, dated : 30 Nov 2015 All Heads of Postal Circles Sub : Scheme for engagement of a dependent of deceased GDS on compassionate grounds - clarification:
Various issues in connection with compassionate engagement scheme were engaging attention of this Directorate for some time past and the same are clarified for the information of all concerned as under:
Ser Point raised Clarification
1 Whether cases of married son living Yes. Clarification on Point
with parents and dependent for No.2 of Directorate's letter
livelihood on the GDS on the date No.17-17/2010-GDS dated
of death of the deceased GDS 09.10.2013 is to be treated
considered and rejected for non-existent/withdrawn ab-
compassionate engagement based initio.
on clarification on Point of Doubt
No.2 vide Directorate's letter No.17-
17/2010-GDS dated 09.10.2013
can be reconsidered in the light of
their consideration as dependant
vide Directorate's letter No.17-
39/2012-GDS dated 14.01.2015?
OA 176/2019
7
2 Whether or not the educational Being a part of regular mode
qualifications prescribed vide of engagement to GDS Posts,
Directorate's letter No.17-39/2012- the educational qualification
GDS dated 06.02.2014 & further applicable on the date of
vide letter No.17-39/6/2012-GDS consideration cases by CRC
dated 14.01.2015 would apply to would apply.
cases of compassionate
engagement taking the day of
death of the GDS as cut off date?
3 Whether it is permissible to allow Yes. However, this will apply
compassionate engagement to a from the date of issue of the
dependant of a deceased GDS order and no rejected past
where the service rendered by cases would be permissible to
him/her was found to be be re-opened.
unsatisfactory due to their
involvement in serious financial
irregularities but expired before
award of penalty?
2. This has the approval of the competent authority.
(Surender Kumar) Assistant Director General (GDS)"
Therefore, as per the respondents letter cited, it is for the respondents to introspect as to whether the departmental employees could be discriminated by not extending a similar relaxation, under Article 14 of the Constitution of India, though for both groups of employees the grounds for consideration for compassionate appointment is one and the same.
(IV) The respondents have cited and relied upon the following Judgements of Hon'ble Supreme Court/Administrative Tribunals in OA 176/2019 8 support of their contentions. The essence of the Judgements is taken and responded to in terms of their application, as under:
a) Order of the Jabalpur Bench of this Tribunal in OA No.708/2008 (Sri Kamlesh Trivedi v. Union of India & Others) dated 17.03.2009, wherein it was held:
"The family is not found to be in penury condition"
In the instant case, the Respondent No.4 has recommended the case of the applicant because the family of the deceased is in penurious condition. Respondents rejected the request on grounds of production of a bogus Transfer Certificate by the mother and not the applicant. Therefore, the Judgement cited is not applicable. On similar grounds, the observations of the Ahmedabad Bench of this Tribunal in Order dated 19.04.2010 in OA No.179/2009, is also not applicable to the present case.
b) The Chandigarh Bench of this Tribunal in the Order passed in OA No.131/PB/2007 dated 15.02.2008 (Sri Surinder Singh v. Union of India & Others), held that "Government is always at liberty to frame any rules, policy or instructions, after approval by the competent authority provided these are not discriminatory or violative of provisions of Constitution etc."
OA 176/20199 The applicant is not challenging the policy of Compassionate Appointment, hence, the observations made in the cited case is not applicable to the case of the applicant.
c) Hon'ble Chandigarh Bench of this Tribunal in order dated 06.11.2008 in OA No.803/PB/2007 held that "Compassionate Appointment can be made only if vacancy is available."
The case of the applicant was considered against vacancies available. The rejection was not for non-availability of vacancies. Hence, it is not applicable to the present case.
d) In the Judgement of the Hon'ble Supreme Court in National Hydroelectric Power Corporation v. Nanak Chand, (2004) 12 SCC 487, held that "Appointment on compassionate ground cannot be claimed as a matter of right."
It is true that the appointment on compassionate ground cannot be claimed as a matter of right, but a person has always a right to be considered for Compassionate Appointment. The same right is being exercised by the applicant. OA 176/2019 10
e) In Union of India v. Joginder Sharma, (2002) 8 SCC 65, the Hon'ble Supreme Court held that "The Tribunal or the High Court cannot compel the department concerned to relax the ceiling and appoint a person".
In the instant case, relaxation of ceiling is not being sought nor a direction to appoint the applicant is being ordered. Only rules and law are directed to be abided by.
f) In Hindustan Aeronautics Ltd. v. A. Radhika Thirumalia, (1996) 6 SCC 394, the Hon'ble Supreme Court held that "Appointment on compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned".
Applicant is requesting for Compassionate Appointment as per relevant rules and regulations framed by the respondents.
g) In LIC v. Asha Ramchandra Ambedkar, (1994) 2 SCC 718, the Hon'ble Apex Court held that "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." OA 176/2019 11 This Tribunal after due consideration of the facts, only directs the respondents to consider the claim of the applicant for Compassionate Appointment.
h) In Sanjay Kumar v. State of Bihar & Others, the Hon'ble Supreme Court, held that "There cannot be reservation of a vacancy till such time as the petitioners becomes major after a number of years."
The above does not apply to the case on hand.
i) In State of Manipur v. Md. Rajaodin, (2003) 7 SCC 511, the Hon'ble Apex Court observed that "In all claims of appointments on compassionate grounds, there should not be any delay in appointment."
The above observation is in favour of the applicant. The employee died in 2008 and the respondents rejected the request of the case of the wife of the deceased employee in 2016 for Compassionate Appointment and that of the applicant in 2018. In other words, they took 10 years to process the request for Compassionate Appointment, which goes against the letter and spirit of the Judgement of the Hon'ble Supreme Court cited above by the respondents.
OA 176/201912
The other Judgements submitted by the respondents are not relevant, since the facts and circumstances are different. (V) In view of the above, wherein it was observed that the respondents have issued a letter dated 13.08.2018 rejecting the request of the applicant for Compassionate Appointment, is itself invalid. Since, it is neither a speaking nor reasoned order, it is incumbent upon the respondents to issue a speaking and reasoned order as per law.
(VI) Further, in the context of the letter issued by the respondents, for GDS employees, there would be a legitimate expectation to extend the same to the employees of the department as well. Respondent being a model employer need to introspect as to whether they can discriminate between two groups of employees, i.e., GDS and departmental employees in respect of Compassionate Appointment. Both the groups worked for the respondents' organization and discharge the responsibilities assigned to them in the best interest of the organization. The main ground for offering Compassionate Appointment is indigent circumstances in which the family of the deceased employee is living. Indigence does not depend on the class. It is in this background respondents have to examine application of the letter dated 30.11.2015, issued by the respondents, to the departmental employees as well. More so, in the case on hand, since the deceased employee OA 176/2019 13 was not involved in a fraud and had a clean record. However, the wife of the deceased employee, being semi-literate, made the mistake of producing a certificate which respondents claim is bogus. Further, respondents have not stated anywhere in the reply statement as to what was the outcome of the police complaint in regard to the missing records. It is not understood or explained as to how the certificate was termed as bogus without verifying the basic records, which are reported to be missing and police investigation is on.
(VII) Thus, keeping the above in view, the respondents are directed to re-examine the request of the applicant by issuing a speaking and well reasoned order stating clearly the points obtained by the applicant when he was considered along with others. The relative merit points secured by the other successful candidates may be indicated so that the interest of justice is served by making it transparent that selection was fair and objective. The points allotted to the each of the attributes, in respect of the applicant shall be indicated while disposing the request of the applicant. As per relevant Section 4 of Right to Information Act, 2005, respondents are expected to display such information, suo moto. In view of the aforesaid, the order dated 13.08.2018 is quashed. Respondents are given two months time to issue a speaking and well reasoned order as ordained above in OA 176/2019 14 congruence with rules and law on the subject. As prayed by the learned counsel for the applicant, if the applicant is aggrieved with the final order, liberty is given to approach the Tribunal by filing an appropriate application, with appropriate grounds, in accordance with law. The OA is allowed to the extent indicated. No costs.
(B. V. SUDHAKAR) Member (A) nsn