Central Administrative Tribunal - Delhi
Smt. Arun Lata vs Union Of India Through on 27 April, 2010
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3083/2009
MA-218/2010
New Delhi this the 27th day of April, 2010.
Honble Mr. N.D. Dayal, Member(A)
Smt. Arun Lata,
Widow of late sh. Jagdish Chand
(Ex. Waste Paper Sorter),
Govt. of India Press,
Aligarh.
R/o C/o Sh. Mohan Singh,
H.No. 2/102, Gali No.2,
Sudamapuri, Aligarh. Applicant
(through Sh. D.N. Sharma, Advocate)
Versus
1. Union of India through
The Secretary to the Govt. of India,
Ministry of Urban Development and
Poverty Evaliation,
Nirman Bhawan, New Delhi.
2. The Director of Printing,
Govt. of India,
B Wing, Nirman Bhawan,
New Delhi.
3. The Manager,
Govt. of India Press,
Aligarh (UP). .. Respondents
(through Sh. Krishna Kumar, Advocate)
O R D E R
The applicant herein is widow of the deceased Group-D employee who was working in Government of India Press, Aligarh when he expired on 27.10.1996 having rendered about 13 years of service.
2. It is submitted that the applicant had two minor sons and a minor daughter to look after and considerable expenditure had been incurred on the treatment of her husband who had been suffering from Cancer. There was no immoveable property and the family has been living in rented accommodation. She belongs to the SC category and had passed the IX Class examination from College in 1979.
3. When the applicant applied for appointment on compassionate grounds, her case was included under the category Labourer and her name appeared at Serial No. 138 of the list. As per the communication dated 13.04.1998 her appointment was to be considered in her turn and on availability of posts. On 12.05.1998 she made a request for being considered for a Group-D post of Peon instead of labourer. There is no material to show that such request was agreed.
4. It is contended that as per the list of candidates enclosed with the OA at page 49 the name of the applicants husband appears at Serial No.12 in the order of eligibility. A number of Group-D posts in different categories including that of labourer and peon were notified for direct recruitment in November, 2007 and the applicant would have had prior claim for appointment against such posts. It is stated that while all the posts have since been filled up, the appointment against 39 posts of labourers is sub-judice before the Tribunal in OA-1134/2008 as well as under investigation by the CVC due to allegations of manipulation by the Selection Committee. It is argued that the applicant has prior claim of appointment against these 39 posts of labourers in preference to freshers or outsiders.
5. It has been submitted that at the time of death of the applicants husband, the DoP&T Policy for appointment on compassionate grounds dated 30.06.1987 was in force, providing for priority and preference to cases of compassionate appointment against other categories meant for direct recruitment, whereas the revised Scheme of 09.10.1998 imposed 5% quota on direct recruitment vacancies to be ear-marked for such appointment. Therefore, it is asserted that as per settled law the applicants case should be decided in terms of the Scheme of compassionate appointment and the Instructions which were in force on the date of death of the applicants husband.
6. The applicant has relied upon the following judgments to buttress the stand that appointment on compassionate grounds is required to be considered on the basis of the rules as they were at the relevant time/at the time of death of the concerned employee and not in terms of amended rules or any policy framed subsequently:-
(i) T. Swamy Das Vs. UOI decided on 10.01.2002 (Annexure A-12) Pankajini Sahoo and Anr. Vs. Sr. Suptd., R.M.S.N Division, Cuttack and Ors. 3/2005, Swamynews 54 (Cuttack) decided on 14.07.2004 (Annexure A-13) Dhanjit Bayan and Anr. Vs. UOI and Ors., (6/2006-Swamynews 54 (Guwahati) decided on 05.09.2005 (Annexure A- 14)
(iv) Nayan Kumar Nanda Vs. UOI & Ors. decided on
07.04.2004 (Cuttack Bench) (Annexure A-15)
(v) Kishan Das Vs. UOI & Ors., (2004(1)ATJ-54) (Jabalpur Bench) decided on 31.10.2003 (Annexure A-16) Sujit Kumar Dutta Vs. UOI & Ors., (2003(6) SLR-125) (Calcutta High Court) (Annexure A-17)
(vii) Smt. Wasanti Devi and Anr. Vs. UOI & Ors., (2006(2) ATJ-490) (CAT-Bombay Bench) (Annexure A-18) Smt. Natho Devi and Anr.Vs. UOI & Ors. (CAT, PB, New Delhi) decided on 05.08.2005 (Annexure A-19)
(ix) B. Uma Vs. The Chief Commissioner, Central Excise, Bangalore and Ors. 6/2005, Swamynews 31 (Banglore) Decided on 03.09.2004 (Annexure A-20)
(x) Amarjit Singh Vs. State of Haryana & Ors. (CWP No. 7874 of 2006) decided on 17.10.2006 (Annexure A-21) It has further been argued that similarly situated persons cannot be treated differently and decisions by a Co-ordinate Bench would ordinarily have to be followed. Besides, those who belong to the SC category have to be dealt with keeping in mind the need to render socio economic justice.
7. It is noticed that the applicant has also filed an MA-218/2010 to add to the averments in the OA mainly by reference to some more notifications of vacancy in 2007/2008 and additional Court decisions in support of the grounds taken by her. She has moved an appeal on 01.08.2009 (Annexure A11) to the Secretary, Ministry of Urban Development and Poverty Alleviation, Govt. of India, New Delhi against the order dated 20.07.2009 impugned herein whereby the applicant was informed that her name was deleted from the list of wait listed applicants earlier considered as deserving for compassionate appointment.
8. The applicant submits that DoP&T O.M. dated 05.05.2003 has neither retrospective application in matters of compassionate appointment, such as that of the applicant, nor can the ceiling of 5% on such appointments as per the Revised Scheme of 09.10.1998 be brought into consideration when there was no such requirement to be fulfilled by the earlier Scheme. Since vacancies have to be governed by the rules applicable at the time they occur, it would not be justifiable to reject the applicants case at a belated stage in terms of the provisions of the Revised Scheme of 09.10.1998. In this background, the applicant seeks setting aside of the order dated 20.07.2009 which has been impugned herein and grant of appointment on compassionate grounds under the DoP&T Scheme of 30.06.1987 against unfilled vacancies of Mazdoors available in the office of Director of Printing, Govt. of India, Nirman Bhawan, New Delhi, who is Respondent No.2, along with payment of costs.
9. By their counter-affidavit the respondents have opposed the claim of the applicant. It is stated that due to non-occurrence of vacancies under 5% quota appointment could not be given even after a lapse of nearly 13 years and there seems to be no possibility in the near future. They have relied upon the following judgments to contend that the object of such appointment is to help the family tide over sudden crisis and risk of financial destitution. It cannot be granted at any time nor can it be claimed as a matter of right. Such appointment can be given only if vacancies are available:-
(a) Umesh Kumar Nagpal Vs. State of Haryana & Ors.
(JT 1994(3) SC 525) Himachal Road Transport Corporation Vs. Dinesh Kumar (JT 1996(5) SC 319)
(c) Hindustan Aeronautic Ltd. Vs. A. Radhika Thirumalai (JT 1996(i) SC 197) Besides, compassionate appointment is governed by DoP&T O.M. dated 05.05.2003 according to which all the wait listed names of deserving candidates which are more than three years old are to be reviewed and recommended for deletion. The Tribunal particularly in OA-1500/2006 (Angoori Devi Vs. UOI) decided on 11.07.2007 had passed adverse comments for not complying with this O.M. Similar observation was made by the Co-ordinate Bench of the Tribunal at Calcutta in OA-594/2006 decided on 26.11.2008 in the case of Chhanda Raha Vs. UOI & Ors. Copies of these orders of the Tribunal are however not enclosed with the reply nor placed during the hearing.
10. The respondents have denied that the vacancies referred to by the applicant relate to the present case or pertain to the quota for compassionate appointment. It is clarified that the applicant is not a party to OA-1134/2008. It is explained that the staff strength of the organization had drastically gone down from 16000 to 7000 as on 01.03.1992. There was not only a restriction of 5% but also a ban on filling up of vacancies which were over one year old. The accumulation of about 350 wait listed candidates over more than a decade was against the spirit of the Scheme for grant of compassionate appointment meant for relieving sudden financial distress and giving immediate relief. A Committee formed by the department took a comprehensive view of Court decisions relating to O.M. dated 05.05.2003 and after examining the pendency as well as various relevant aspects noted that indefiniteness of appointment and endless wait listing of selected candidates was giving rise to administrative difficulties and Court cases. The reports and minutes of meeting have been enclosed at Annexure R-I and R-II. It is submitted that the husband of the applicant having passed away in 1996, to continue her name on the waiting list indefinitely would not have been in consonance with government instructions or the view taken by Courts.
11. By his rejoinder the applicant has disputed the stand taken by the respondents and reiterated the grounds advanced in the OA in support of her case.
12. I have heard the learned counsel for both sides and perused the pleadings. It is observed that the case of the applicant for appointment on compassionate grounds had been considered as a deserving one and as per the communication dated 13.04.1998 at Annexure A-2 her name was placed under the category labourer at Serial No.138. The appointment was to be considered in her turn and on availability of posts. The applicant had written to the respondent on 12.05.1998 expressing dissatisfaction with being placed in the list of labourers posts at Serial No.138 and seeking to be brought under Group-D for the post of Peon. Apparently the applicants case had already been considered before the Revised Scheme of 09.10.1998 was promulgated and it would not be correct for the applicant to complain that her case has not been considered in terms of the Scheme and Policy as it existed prior to the issue of the Revised Scheme. The legal position as it existed prior to 1998 was governed primarily by the judgments of the Honble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana and Others, (JT 1994(3) SC 525), Himachal Road Transport Corporation Vs. Dinesh Kumar, (JT 1996(5)SC 319) and Hindustan Aeronautics Limited Vs. Smt. A. Radhika Thirumalai, (JT 1996(9) SC 197). It had been laid down that the object of granting compassionate appointment was to enable the family to tide over the sudden crisis and relieve it from financial destitution so that it could get over the emergency. Such appointment could not be granted after a lapse of reasonable period and it was not a vested right which could be exercised any time in future. Besides, such appointment could be made only if vacancy was available for that purpose.
13. A perusal of the Scheme of 30.06.1987 relied upon by the applicant shows that in Para-7 thereof it had been, inter alia, emphasized that the concept of such appointment is largely related to the need for immediate assistance to the family and the very fact that the family has been able to manage some how for many years should normally be adequate proof to show that the family had some dependable means of subsistence. Therefore, examination of such cases required a great deal of circumspection. Para-11(4) of this Scheme relates to P&T Department whereby it had been decided that such cases of compassionate appointment will get priority over other categories of staff. As per this earlier Scheme, compassionate appointments could be made in conformity with relevant recruitment rules, only against direct recruitment quota and by following the reservation policy upto 50% of the vacancies as well as factoring in the benefits received by the family under various Welfare Schemes such as CGEIS, Leave Encashment, GPF, Family pension, assistance from compassionate fund etc. Details about her eligibility under such criteria relevant to appointment under the Scheme of 1987 have not been provided by the applicant.
14. It is, however, evident that when a wait list is being maintained of cases held to be deserving of compassionate appointment, and the appointment is to be given in turn subject to availability of vacancy, the turn of the applicant would come according to her position in the wait list, wherein she seems to have moved from 138 to 108 and even further up later on, regardless of the new Scheme having been introduced. There is no provision to which my attention has been drawn whereby those found deserving and wait listed as per the earlier Scheme were placed at any disadvantage to those found deserving and wait listed as per the Revised Scheme. The respondents have made clear that the applicant was not a part of the litigation referred to in the OA and the vacancies brought to notice by the applicant do not relate to those ear-marked for compassionate appointment. My attention is not drawn to any material on record which might cast doubt on such contention. It is, however, seen that the Scheme of 1987 did not impose any 5% quota on vacancies and reliance upon such percentage by the respondents may not be correct in the present case. But the matter relating to the vacancies raised by the applicant is sub-judice and it is not possible to speculate on the availability of the same with any degree of reliability. Besides since no specific vacancies of the post are unequivocally identified and present availability cannot be relied upon, it is not clear how the relevance of rules to the occurrence of vacancy can be appreciated.
15. The learned counsel for the applicant has particularly cited judgment of the Honble Punjab and Haryana High Court enclosed at Annexure-10 to the MA titled Neeraj Malik Vs. State of Haryana and others decided on 18.08.2006 as well as order passed by Co-ordinate Bench of this Tribunal at Bangalore in B. Uma Vs. Chief Commissioner, Central Excise, Bangalore and Ors, dated 03.09.2004 along with judgment of the Honble high Court of Madhya Pradesh in T. Swamy Das Vs. UOI decided on 10.01.2002 in Writ Petition No. 5760/2000. However, on the basis of these judgments and orders as well as others quoted in the OA, it is not the case of the applicant that appointment on compassionate grounds could be granted in the absence of vacancy or that the purpose and object of the old Scheme was not to extend such appointment mainly to help overcome the sudden emergency and financial crises due to loss of the bread winner of the family. There can be little doubt that the DoP&T O.M. dated 05.05.2003 would not have retrospective application as also held in B. Uma (supra) by the Co-ordinate Bench at Bangalore. But keeping in view the judgements of the Honble Supreme Court noticed in the discussion above, I am of the opinion that the action taken by the respondents to discontinue the case of the applicant, after it was found deserving and kept for appointment on the waiting list for over a decade, cannot be faulted in law.
16. In view of the above, I do not find sufficient grounds to accede to the prayer of the applicant. The O.A. is therefore dismissed. No costs.
(N.D. Dayal) Member(A) /vv/