Central Administrative Tribunal - Allahabad
Naresh Chandra vs Controller General Of Decence Accounts on 11 January, 2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 11th day of January, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Miscellaneous Application No. 522 of 2017 (Delay Condonation)
In
Original Application No. 164 of 2017
Naresh Chandra son of Late Nokhe Lal
R/o Village - Janwar, Post - Kathauli (Meja)
District - Allahabad
........... APPLICANT
By Advocate: Shri D K Pandey
Versus
1. Union of India through its Secretary, Defence, West Block - V, R.K.
Puram, New Delhi.
2. Principal Controller of Defence Accountant (pension) Allahabad - 14
3. Senior Account Officer (Administration) Allahabad.
4. Deputy Controller of Defence Account (Admin), Allahabad.
..........RESPONDENTS
By Advocate: Shri S C Mishra
ORDER
Shri D K Pandey, learned counsel for the applicant and Shri S C Mishra, learned counsel for the respondents, are present.
2. The applicant in the present original application is aggrieved from denial of his claim for appointment on compassionate grounds. A perusal of the delay condonation application No. 522 of 2017 which has been filed along with the original application also reveals that the cause of action arose on 06.02.2003 when an order considering the claim of the applicant was passed by the respondents wherein it was stated that the request of the applicant for appointment on compassionate grounds was considered by the relevant Board of Committee but he was not granted the benefit of the same due to non- availability of vacancy under dying in harness in that year and it was
1|Page further stated that his case shall be re-considered as and when the vacancies are available.
3. Heard the learned counsel for the parties on delay condonation application.
4. Learned counsel for the applicant submits that the case of the applicant was rejected by the Competent Authority amongst the respondents vide order dated 06.02.2003 on the grounds that at the relevant time no post was vacant under dying in harness and in future if the post will be available, his case shall be considered afresh. Learned counsel for the applicant submits that the order dated 06.02.2003 vividly implies that by their own statement, respondents were bound to reconsider the applicant's case as and when a vacancy is created. However, instead of doing the same, vide order dated 26.06.2003, respondents also passed a rejection order holding that the applicant's claim for compassionate appointment was disposed of being more than one year old.
5. Learned counsel for the applicant further submits that seeking a redressal of his grievance, the applicant earlier approached this Tribunal by way of OA No. 785 of 2004 which was dismissed on 18.09.2007 on the grounds that no vacancy under dying in harness was available in the department. Subsequently, learned counsel submits, the applicant filed an R.T.I. application seeking information regarding availability of vacant post under dying in harness for the time period as stated above and the respondents, in their reply dated 28.07.2016 furnished that from 06.02.2003 to 01.06.2016, a total number of 30 candidates have been appointed under dying in harness. Thus, the learned counsel submits, it is evident that vide order dated 26.06.2003, respondents' produced a false statement that no vacancy under dying in harness was available. However, 30 candidates were appointed under the same rule in that period. Thus, the applicant was left with no option but to prefer the instant original application seeking redressal of his grievance especially owning to the fact that applicant is still unemployed and got no other source of income except the family pension.
2|Page
6. Learned counsel for the respondents vehemently opposes the applicant's prayer submitting that the instant original applicant deserves to be dismissed straightway as the same has been filed belatedly. The controversy arose on 06.02.2003 but the application was filed in 14.02.2017 which implies that Section 21 (1) (a) which speaks for the limitation period for admitting an application in the Tribunal has not been taken into account while admitting this belated case.
7. Deliberating further upon the above submission, learned counsel for the respondents by way of his objection filed against the delay condonation application, further submits that the provision of Section 21 (1) (a) has been taken into account while dismissing a belated case on the ground of delay in a number of judgments passed by the Hon'ble Courts for example, in the case of Paramu Versus Union of India reported in (1986) ATC 514 and also in case of Charan Versus Union of India reported in ATR (1987) 1 CAT 625 (630) (Jodh). Furthermore, learned counsel submits, the Apex Court has laid down in the case of Mohd. Khalis Versus UOI (1997) SLJ (CAT) 54 that 'No application shall be admitted by the Tribunal unless it is made within a year from the date on which the final order had been given'. In the same case, learned counsel submits, the Apex Court also held that 'subsequent moving of representation will definitely not extend the period of limitation'. This decision was further upheld by the Apex Court in Sri Niwas Pathak versus UOI (1997) 2 SLJ (CAT) 520.
8. Learned counsel for the respondents further submits that the applicant has failed to make out any cogent or compelling ground inviting the condonation provisions of Section 21 (3) of the Tribunal Act. The Apex Court in another case of Bhagmal Versus UOI (1997) 2 SLJ (CAT) 543 held that 'Delay cannot be condoned unless sufficient grounds are shown'.
9. As regards to the reliance placed upon by the applicant on the RTI reply dated 28.07.2016, learned counsel for the respondents submits that the case of the applicant was considered and not
3|Page recommended by the Board of Officers for want of vacancy and the information regarding this was duly communicated to the applicant by way of a speaking order dated 26.06.2003 wherein it was stated that the applicant's case was rejected due to non-availability of vacancy within the ceiling limit of 5%. And the applicant challenged the said order dated 26.06.2003 in OA No. 785 of 2004 which was dismissed by the Tribunal. Therefore, filing another petition at this juncture seeking redressal of the same grievance that has already been settled previously by the competent judicial forum is absolutely uncalled for in the eyes of law.
9. Rebutting the averments of the learned counsel for the respondents, learned counsel for the applicant submits that the applicant has no role for the delay that has happened in the matter and whatever delay was there, has been on account of the fact that the applicant was running from pillar to post for the redressal of his grievance. As regards to the 5% ceiling limit that has been mentioned by the learned counsel for the respondents, applicant's counsel submits that in its judgment dated 08.04.2009 in case Hari Ram Vs. Food Corporation of India and others, the Hon'ble High Court of Allahabad vividly held that 5% ceiling limit on the issue of compassionate appointment is not justified and unjust. Thus, the instant case of the applicant should not have been rejected on this ground.
10. As regards to the contention that the benefit of compassionate appointment can only be granted if the scheme was in existence when the cause arose, learned counsel for the applicant further relies upon judgment dated 15.05.2015 of the Apex Court in case Canara Bank and another V/s M Mahesh Kumar stating that the Hon'ble Court directed the Canara Bank to consider the case of the respondents for compassionate appointment as per the Scheme which was in vogue at the time of death of the concerned employee.
11. I have considered the rival contentions advanced by learned counsel for the parties and also perused the judgments as have been referred by them.
4|Page
12. As far as the judgment dated 15.05.2015 of the Apex Court in case Canara Bank and another V/s M Mahesh Kumar relied upon by the learned counsel for the applicant is concerned, issue involved in that matter was that as to whether the claim of compassionate appointment will be considered on the basis of scheme prevalent at the time of death of the concerned employee or scheme replaced later on. Thus, applicant cannot get the benefit of the law laid down in the aforesaid case as no such issue is involved in the present matter. Here, the applicant had earlier approached the Tribunal through OA No. 785 of 2004 which was dismissed on merits. Deceased employee died in the year 2000. Firstly, the applicant's application was considered and rejected in the year 2003.
13. In Hari Ram (supra) case, the Hon'ble High Court of Allahabad in Para No. 3 has held as under:
"13. The prescription of 5% quota of the direct recruitment for compassionate appointment falls within the domain of the policy adopted by the Government of India. The Court will not ordinarily interfere with such policy unless it is wholly arbitrary and unreasonable. The policy is reasonable and adopted to balance with the rights of unemployed men and women and is thus not violative of Articles 14 and 16 of the Constitution of India."
If the submission rose on behalf of applicant in regard to law laid down in Hari Ram (supra) case is taken into consideration, learned counsel appearing for the applicant has wrongly interpreted it. 5% quota has not been declared unconstitutional rather time limit of 3 years for offering compassionate appointment has been declared to be irrational, arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India.
14. Furthermore, the controversy involved in the present case pertains to compassionate appointment which arose in the year 2000 and a period of approximately 23 years has been elapsed since then. Judgment and order passed in OA No. 785 of 2004 has attained finality and substantial period is over, therefore, it is clear that the
5|Page applicant and his family are not in a state of financial destitution and applicant cannot be permitted to agitate the same issue again and again. Apart from this, delay occurred in filing the present original application has also not been satisfactorily explained.
15. In view of the above deliberations, I am of the view that reasons given for condonation of delay are not cogent and convincing. Finding no merit in the application seeking condonation of delay, the instant Miscellaneous Application No. 522 of 2017 is dismissed. Accordingly, the Original Application No. 167 of 2017 also stands dismissed.
16. There shall be no order as to costs.
(Justice Om Prakash VII) Member (Judicial) (Ritu Raj)
6|Page