Central Administrative Tribunal - Cuttack
L Mallick vs D/O Post on 21 October, 2022
OA 9 OF 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
Present: Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
No. OA 9 of 2017
Laxmidhar Mallick, aged about 42 years, S/o Late Lokanath
Mallick, presently working as Postal Assistant in Chandinichowk,
Dist Cuttack, R/o Kantabalavpur, PO/PS/Dist Jagatsinghpur.
......Applicant
VERSUS
1. Union of India represented through its Director General,
Department of Post, Dak Bhawan, New Delhi - 110001.
2. Chief Post Master General, Odisha Circle, Bhubaneswar, Dist
Khurda.
3. Senior Superintendent of Post Office, City Division, Cuttack,
Cantonment Road, Buxi Bazar, Cuttack - 01
......Respondents
For the applicant : Mr. S. Patra -1, counsel
For the respondents: Mr. S. Behera, counsel
Heard & reserved on : 15.10.2022 Order on : 21.10.2022
O R D E R
Per Mr.Swarup Kumar Mishra, J.M. The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs : Page 1 of 8
OA 9 OF 2017 A) The Respondents be directed to regularise the service of the applicant for the leave vacancy period from 21.07.1999 to 16.01.2012 and to pay all benefits as admissible to the applicant.
B) Pass any other order/orders as would be deemed just and proper.
2. Heard both sides and perused the records.
3. It is the case of the applicant that even though his case for compassionate appointment was recorded in the CRC meeting for the year 1997, kept in waiting list and was engaged as daily wager w.e.f. 21.07.1999, he was not regularized even though other persons whose case was approved in subsequent years were regularized. He further submitted that this action of the respondents is discriminatory.
4. On the other hand it is the stand of the respondents that case of the applicant was approved by the CRC for appointment in PA Cadre subject to availability of vacancy under compassionate appointment quota. Since the appointment as approved by CRC was subject to availability of vacancy in PA cadre and there was no vacancy under compassionate quota, the applicant was allowed to work on leave vacancy on daily wage basis on his request only with clear understanding that such engagement will not be taken into account in future. They further submitted that Directorate vide letter dated 08.02.2001 had discontinued the waiting list of candidates approved for compassionate appointment. As per order of this Tribunal dated 22.08.2011 in CP No. 50/2009 (arising out of OA 701/2006 which was confirmed by Hon'ble High Court of Orissa) the respondents issued orders for appointment to the Page 2 of 8 OA 9 OF 2017 applicant vide order dated 11.01.2012 and the applicant joined as Postal Assistant from 17.01.2012. The respondents further submitted that the representation of the applicant for regualrizing of service against the leave vacancy from 21.07.1999 could not be considered because regualrizing of service is made from the date of joining of an official on regular basis and not on the date he could have been offered earlier.
5. This Tribunal vide order dated 12.10.2008 in OA No. 701/2006 had issued following orders:
"5.It is not necessary to repeat all those arguments advances by the respective parties; because from the record produced by the applicant under Annexure A/7 it is conclusively proved that there has been gross discrimination thereby miscarriage of justice to the applicant in the matter of providing regular appointment on compassionate ground to the applicant; because although the death of the father of the applicant and approval for providing employment assistance on compassionate ground to the applicant was prior to the persons under Annexure A/7. Those candidates were provided regular appointment in the PA cadre of the Postal Department where the applicant has been deprived of the same till date. Law is well settled and needs no emphasis that discretion cannot be used discriminatorily. Since in the present case it seems that discretion has been used discriminatorily, the Respondent No. 1 is hereby directed to cause an enquiry as to how a candidate i.e. the applicant who has been approved earlier and working in the department on DLR basis due to non availability of vacancy has been deprived of appointment as soon as vacancies were available by filling up those vacancies through persons whose cases arose much after the case of the applicant. Such miscarriage of justice caused to the applicant in the decision making process of executing the order under Annexure A/1 dated 17.09.1997 needs to be removed forthwith at any rate within a period of 45 days from the date of receipt of copy of this order. In the event of finding any fault with any of the officials, Respondent No. 1 is free to take action against those erring officials in accordance with rules.
6. Resultantly, this OA stands allowed to the extent stated above. There shall be no order as to cost.."Page 3 of 8
OA 9 OF 2017
6. The said order was challenged by the Respondents by way of filing WP (C) No. 6606 of 2009 which was dismissed by Hon'ble High Court of Orissa vide its order dated 22.08.2011. The order of Hon'ble High Court is extracted below:
"This case is covered by a judgment of this Court dated 9.12.2009 passed in WP (C) No. 17104 of 2009. In view of the ratio laid down in the said case, this writ petition has no merit and accordingly dismissed."
The order of Hon'ble High Court in the referred judgment dated 9.12.2009 passed in WP (C) No. 17104 of 2009 is extracted below:
" This writ application is directed against the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 24.10.2008 passed in OA No. 630 of 2006.
The father of the opposite party while working as a Group D employee was allowed to retire on the ground of invalidation. After his retirement, the opposite party filed an application for compassionate appointment in the year 1998 under the Scheme of the petitioners. The said application was considered by the Circle Relaxation Committee constituted for scrutiny of the applications for compassionate appointment and the Committee recommended his name for such appointment and accordingly he was kept in the wait list. Subsequently, he was engaged as daily wager from 08.10.1998 and has been continuing as such. He having not been given a permanent appointment in terms of the recommendation made by the Committee, approached the Tribunal for regular absorption. The petitioners filed counter before the Tribunal stating therein that though the name of the opposite party had been included in the wait list, the system of wait list having been abolished from 2001, the claim for such appointment does not exist. The opposite party filed rejoinder before the Tribunal stating therein that even though his claim was of the year 1998 and the Committee recommended his name for appointment on compassionate ground, he was not given appointment, but approvals made in case of candidates in 2001, 2004 and 2005 were considered and appointments were made. The Tribunal accepted the plea of the opposite party and directed the petitioners to regularize the services of the opposite party within six month and further directed that in the event there is no post for regularizaiton, a supernumerary post would be created for such appointment. Challenging the said order of the Tribunal, this writ application has been filed. The petitioners assail the impugned order on the ground that the system of wait Page 4 of 8 OA 9 OF 2017 list having been abolished since 2001, the opposite party has no right for regularizaiton.
As is evident from the impugned order, 5% of the total number of vacancies occurring in a year are kept for appointment under the Scheme of compassionate appointment. In the year 1998 the name of the petitioner was recommended by the Committee for compassionate appointment and he was kept in the wait list possible because of non availability of the post. In the year 2001 the case of the opposite party could have been considered for such appointment. If the system of wait list was abolished, the Department should have taken steps to exhaust the wait list by 2001. The persons who were recommended for such appointment after 2001 have been given appointment in the very same year because of availability of vacancy even though the name of the opposite party was recommended in the year 1998, he was not given appointment for non availability of post. The conduct of the Department in this regard amounts to clear discrimination and we are of the view that the Tribunal was justified in directing the petitioners to appoint opposite party on compassionate ground on the basis of recommendation made by the Committee in the year 1998.
We, therefore, do not find any merits in the case and dismiss the same."
The respondents challenged the order dated 22.08.2011 passed by Hon'ble High Court in WP (C) No. 6606 of 2009 before Hon'ble Apex Court in SLP No. 21701 of 2012 which was dismissed vide order dated 05.02.2016.
7. During course of argument learned counsel for the applicant relying on decision of Hon'ble Apex Court in the case of Union of India & another versus M. Mallavan in Civil Appeal No. 7773/2009 submitted that the applicant being similarly placed should also be extended the same benefits. Learned counsel for the respondents by drawing attention of this Tribunal to para 10 of counter submitted that the said decision will not be applicable to the applicant since it is mentioned therein that it shall not be treated as precedent for the purpose of any other case/cases that are pending. The decision of Hon'ble Apex Court in M. Mallavan (supra) is extracted below:
Page 5 of 8
OA 9 OF 2017 "We have heard learned counsel for the parties.
During the course of hearing of this batch of appeals, the appellants repented by the Director (Staff), Ministry of Communication & IT., Department of Posts filed an additional affidavit which may put an end to the controversy between the parties. In fact the said additional affidavit has been filed pursuant to certain observations made by this Court while hearing the appeals.
It is evident from the affidavit that the entire matter was reconsidered by the Department and upon such examination based on humanitarian considerations, found that out of 204 respondents in all 202 respondents working in the department against short term/leave vacancies can be accommodated against compassionate appointment vacancies for the years 2000-01 to 2009 as per the departmental guidelines. However, in the case of Postal Assistants (PA) and Sorting Assistants (SA) cadre, according to the Ministry, the number of vacancies earmarked for this period is only 113 whereas the number of respondents claiming the relief is 152. However, it is stated that as a one time measure the department is willing to accommodate them against residual vacancies of the department. The statement made in the affidavit is made part of the record directing the respondents to act upon the same.
In the circumstances, the appellants are directed to regularize the services of all the 202 respondents who are working in the department against short term/leave vacancies with effect from their date of appointment.
However, the respondents shall not be entitled for payment of any arrears on account of such regularization. But the pay and pensionary benefits are protected.
In view of this order, it is made clear that the findings recorded by the Tribunal and as well as the High Court with regard to the interpretation of office memorandums and circulars of the department are set aside and those findings and observations shall not be treated as precedent for the purpose of any other case or cases that may be pending.
The question of law, if any, are left open.
The appeals are accordingly disposed of without any order as to costs. The interlocutory applications are accordingly allowed." (emphasis supplied) Page 6 of 8 OA 9 OF 2017
8. Bare perusal of the above order of Hon'ble Apex Court clearly states that the findings of the Tribunal and High Court are set aside and those shall not be treated as precedent for the purpose of any other case or cases that may be pending. The respondents on the other hand interpreted that the findings of Hon'ble Apex Court is not precedent for considering case of the applicant which this Tribunal feel is not right.
9. It is also seen from record that some similarly placed persons whose case was approved in the year 2001, 2004 and 2005 have been given appointment whereas the applicant whose case was approved for appointment by the CRC in the year 1997 was not given appointment. This action of the respondents was found to be irregular, illegal and discriminatory in earlier order in OA no. 701/2006 and direction was given to the respondents to cause an inquiry on how miscarriage of justice to the applicant in executing the order dated 17.09.1997 was caused and to remove it forthwith at any period within a period of 45 days. The said order of this Tribunal was also upheld by Hon'ble High Court which also held that the action of the respondents as clear discriminatory and directed the respondents for appointing the applicant on the basis of recommendation made by the Committee in the year 1998. The respondents in compliance of the said order regularized the service but from 09.09.2011, which is arbitrary, irregular, illegal, discriminatory and vioaltive of Article 14 & 16 of Constitution of India. The applicant being similarly placed with the applicants in M. Vallavan (supra) are also eligible to the said benefits extended to them by the department. Therefore, the respondents are directed Page 7 of 8 OA 9 OF 2017 to regularize the service of the applicant from his initial date of posting i.e. in the year 1999. However we make it clear that the applicant will not be entitled for payment of any arrears on account of such regularization but the pay and pensionary benefits are protected as per the order of Hon'ble Apex Court in case of M. Vallavan (supra). The entire exercise be completed within a period of 90 days from receipt of copy of this order. Ordered accordingly.
10. The OA is accordingly allowed to above extant. No costs.
(SWARUP KUMAR MISHRA) MEMBER (J) (csk) Page 8 of 8