Central Administrative Tribunal - Allahabad
Kripa Shankar Paliwal vs Union Of India Through on 4 February, 2011
(Reserved) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 4th day of February, 2011 CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER- J ORIGINAL APPLICATION NO. 1440 OF 2009 (U/s, 19 Administrative Tribunal Act, 1985) Kripa Shankar Paliwal, Son of Late Karuan Shanker Paliwal Aged about 34 years, Resident of 12, Buzi Kalan, Daraganj, Allahabad. Applicant. By Advocate : Sri A.K. Srivastava V E R S U S 1. Union of India through its Secretary, Ministry of Company Affairs, Shastri Bhawan, New Delhi. 2. The Regional Director, Northern Region, Ministry of Company Affairs, PDIL Building, Ground Floor, Sector. I, NOIDA ..Respondents By Advocate : Shri Firoz Ahmed, holding brief of Shri R.D. Tiwari O R D E R
The instant Original Application has been filed against the impugned order dated 27.8.2009 rejecting the case for appointment on Compassionate Ground.
2. Brief facts of the case are that the father of the applicant was working as a Senior Technical Assistant with the respondent. He died on 29.5.2005. Immediately after the death of his father, the mother of the applicant made a representation on 24.6.2005 seeking appointment on Compassionate Grounds for his son (the applicant). The said representation was forwarded by the Official Liquidator to Respondent No.2 on 28.6.2005. On 28th October, 2005 the applicant was informed by the Official Liquidator that at present there is no vacancy under 5% Direct Recruitment Quota and whenever vacancy will arise the case of the applicant will be considered. The applicant was kept on waiting. He made representation 14.11.2005, followup representation 27.02.2006, 9.6.2006 and 13.09.2006. It is submitted that the ground taken by the respondents that on the date of consideration of his claim there was no vacancy under 5% quota reserved for compassionate appointment is totally false. The applicant had sought information under the Right to Information Act and he was informed by the Dy. Director INSPN on behalf of the Respondent No.2 in April, 2007 that 26 positions were still vacant with the respondent department.
3. Notice of the Original Application was issued to the respondents who after putting their appearance filed their detailed counter affidavit. Respondents have taken a ground that as per scheme of Compassionate Appointment issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training (for brevity, DOPT) dated 9.10.1998 subsequent dated 5.5.2003 and 31.5.2003, compassionate appointment can be made upto the maximum 5% of the vacancies falling under the Direct Recruitment Quota in Group C and D posts. It is further stated that on the date of consideration of the case of the applicant, there was no vacancy under the quota; therefore, his case was rejected. It is further averred that as per DOPT O.M. dated 31.5.2003 maximum time limit i.e. three year has been fixed for consideration. If in the three years, he has not given appointment then his case is to be closed. The applicants case was considered by the respondents on 28.10.2005 and accordingly he was intimated that there was no vacancy available under quota of 5%. It is submitted that a meeting of Screening Committee was held on 31.7.2009 under the Chairmanship of the then Regional Director, the case of the applicant was also reconsidered and the same was rejected on the ground of non-available of vacancy. Therefore, the claim of the applicant was considered in terms of the O.M., of DOPT issued from time to time.
4. With regard to the averments made by the applicant regarding availability of vacancies on the date of consideration of his case, the respondents has categorically stated in para 22 of Counter Affidavit that all the 16 posts were abolished by the Screening Committee on 25.05.2005 and the remaining 24 posts of L.D.C. are vacant which can be filled up only after clearance from the Screening Committee.
5. The Applicant has also filed rejoinder to the Counter Affidavit and stated that from 2000 to 2009 no appointment on the Compassionate Grounds has been given by the respondents despite having vacancies under said quota. It is further submitted that respondents themselves have admitted in their letter dated 11.4.2007under RTI act that there are total 24 posts of LDCs lying vacant but can be filled up only on clearance from the Screening Committee.
6. It is an admitted fact an application under the scheme of Compassionate Appointment was moved at the earliest point in time. The case of the applicant was considered by the respondents and the applicant was informed regarding non availability of vacancies on 28th October,2005 and that his case will be considered as soon as the vacancy arises under the quota (Annexure-7). Relevant part of the letter dated 28.10.2005 reads as under:-
Sub:- Application for appointment of Shri Kripa Shankar Paliwal S/o of late Shri K.S. Paliwal (Expired on 29.05.2005) on Compassionate Ground.
_______ Madam, It is to inform you that the application of Shri Kripa Shankar Paliwal S/o late Shri K.S. Paliwal S.T.A. of this office was sent to the Directorate for appointment on the compassionate ground, but the Directorate has informed to the undersigned the there is no vacancy in Group C and D under 5% direct recruitment Quota for filling up the post on compassionate ground. The Directorate has also informed that the representation/ application of Shri Kripa Shankar Paliwal will be considered soon as the vacancy arise in this Quota on merit. This is for information please. Earlier O.A. No. 388/09 filed before this Tribunal, was disposed of vide judgment dated 24.4.2009 with the direction to the respondents to decide the representation of the applicant within a period of three months from the date of receipt of a copy of the said order in accordance with the relevant rules/policy dealing with the grievance of the applicant by passing a reasoned order. In compliance thereof the case of the applicant was rejected on the ground of non availability of vacancies vide impugned order dated 27.8.2009. The relevant part of the order reads as under:-
Considering the details available in the notes placed before the Committee and in view of non-availability of vacancy as per the limits as prescribed for appointment on compassionate grounds as also considering the facts that three years have already elapsed in most of the cases referred the Committee is of the view that it will not be feasible to appoint the candidates mentioned in the notes on compassionate grounds. This Directorate received applications from 12 candidates for compassionate appointment and you are at sl. No. 6. As per rules, appointment on compassionate grounds can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group C or D post. However, this quota has already exhausted. Therefore, in view of the decision of the Screening Committee as stated above and the fact that there is no vacancy under 5% quota for appointment on compassionate grounds exist in Northern Region, it is not feasible to consider your case for appointment on compassionate ground. Counsel for the applicant Shri A.K. Srivastava vehemently argued that once the respondents themselves kept the case of the applicant pending till availability of the vacancy then it is imperative upon the respondents to consider his claim against the post lying vacant with them. It is also evident from the Annexure appended with the rejoinder affidavit that there are positions lying vacant with the respondent department since 2006 but the same was not filled up as the clearance from the Screening Committee was not received. Once it is evident that there are vacancies lying available with the respondents, therefore, it is imperative upon the respondents to offer the appointment to the eligible candidate under the Compassionate Grounds in terms of the O.M. issued by the Ministry of Personnel, DOPT.
7. Heard counsel for the parties and perused material on record. It is evident from the information dated 11.4.2007 at RA(Annexure R-ii) that some vacancies do exist in group C pending clearance of appropriate Screening Committee before filled up. So that extant no fault can be found with the respondents.
8. The other reason advanced by the respondents in the impugned order is the conditions contained in DOPT guide lines dated 31.5.2003 i.e. case which are more than three years old should be closed.
9. The question of constitutional validity of DOPT guidelines dated 31.5.2003 was considered by the Jurisdictional High Court of Allahabad in Civil Misc. Writ Petition No. 13102/20 in the case of UOI and others Vs. Smt. Asha Mishra & Anr. decided on 7.5.2010 wherein the Honble Division Bench while dealing with the similar preposition has set aside the O.M. dated 31.5.2003. The relevant observation of the Division Bench reads as under:-
In this background, keeping the object and purpose of such appointment, the Tribunal rightly found that where family has been held to be living in penurious condition, and that appointment could not be offered for want of vacancies in 5% of the direct recruitment, the restriction of 3 years for consideration for such appointment is wholly unreasonable, irrational and arbitrary. Unless it is found that any member of the family has acquired employment or any asset, which may mitigate the continuing hardships, the closure of the case for consideration of compassionate appointment to a family of which the bread earner has died, after three years is extremely harsh and unjust. In such case the family in need of compassionate appointment may be displaced by another family, who may be suffering lesser hardships.
The question of delay is related to the making of the application and not the pendency of application. Where a member of the family of the deceased seeking compassionate appointment has applied within a reasonable time and that competent authority/committee has found the application to fall within the prescribed norms, and living in penury, the delay on account of want of availability of vacancy in 5% quota of direct recruitment cannot be attributed to the applicant. The prescription of 5% quota may serve the principles of reverse discrimination to direct recruits, seeking employment and violation of their rights under Art. 14 and 16, if all the vacancies are available for compassionate appointment, but confining the consideration for appointment in 5% quota for only three years has no rationale or any object to achieve for providing such appointment. In view of the decision which is binding nature of the ratio laid down by the Jurisdictional High Court. The impugned order dated 27.8.2009 is set aside and quashed with the following directions at (i), (ii) & (iii) below to be complied with eight weeks of receipt of certified copy of this order.
(i) The case of the applicant will be kept open till it comes up for consideration on merit.
(ii) A wait list of applicant be published in the order of date of application and be provided to the applicant and also displayed on the office notice board.
(iii) As and when the case of the applicant is considered a reasoned and speaking order disclosing full proceeding and result of the selection process will be declared for all interested applicant to see. The selection process has to be as per rule and based on objective parameters.
10. With these directions the Original Application is disposed of. No order as to costs.
MEMBER (J) Sj* ??
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8 O.A. No. 1440 of 2009