Kerala High Court
Union Of India vs Deepu C.J on 16 February, 2021
Equivalent citations: AIRONLINE 2021 KER 1351
Author: Alexander Thomas
Bench: Alexander Thomas, T.R.Ravi
O.P.(CAT) No.194/2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
OP (CAT).NO.194 OF 2018
AGAINST THE JUDGMENT IN O.A. NO.912/2016 DATED 21-02-2018 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN O.A.:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
INDIA, MINISTRY OF COMMUNICATIONS AND INFORMATION
TECHNOLOGY, DEPARTMENT OF POSTS, DAK BHAVAN,
SANSAD MARG, NEW DELHI 110 001.
2 THE CHIEF POST MASTER GENERAL,
KERALA CIRCLE, THIRUVANANTHAPURAM - 695033.
3 THE SENIOR SUPERINTENDENT OF POST OFFICES,
THRISSUR POSTAL DIVISION, THRISSUR - 680001.
BY SRI.T.V.VINU, CGC
RESPONDENT/APPLICANT IN O.A.:
DEEPU C.J.,
S/O. M.D.JOSE (LATE), CHIRAYATH MANJILA HOUSE,
PUTHENPEEDIKA PO, THRISSUR DISTRICT 680 642.
BY ADV. SRI.T.C.GOVINDA SWAMY
BY ADV. SMT.KALA T.GOPI
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-02-2021, THE
COURT ON 16-02-2021 DELIVERED THE FOLLOWING:
O.P.(CAT) No.194/2018 2
(C.R.)
ALEXANDER THOMAS & T.R.RAVI, JJ.
--------------------------------------------------------------------------------
O. P. (CAT) No. 194 of 2018
[Arising out of the impugned final order dated 21.2.2018 in
O.A. No. 912 of 2016 on the file of the CAT, Ernakulam Bench]
---------------------------------------------------------------------------------
Dated this the 16th day of February, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in the afore captioned Original Petition filed under Articles 226 & 227 of the Constitution of India are as follows: {See pages 6 & 7 of the paper book of this OP(CAT)} "...........set aside Exhibit-P3 Order in OA No.180/00912/2016 dated 21.02.2018, of the Central Administrative Tribunal, Ernakulam Bench, in the interest of justice."
2. Heard Sri.T.V.Vinu, learned Central Government Counsel appearing for the petitioners in the O.P./respondents in the O.A. (The Union of India, The Chief Post Master General (Kerala Circle) and another) and Sri.T.C.Govinda Swamy, learned counsel appearing for sole respondent in the O.P./sole applicant in the O.A. before the Tribunal.
3. The prayers in Ext.P-1 O.A. No. 912/2016 filed by the O.P.(CAT) No.194/2018 3 respondent herein (original applicant) before the Central Administrative Tribunal, Ernakulam Bench, are as follows: {See page 18 of the paper book of this OP(CAT)} "
i. Call for the records leading to the issue of A1 and quash the same; ii. Declare that the applicant is eligible to be considered for an appointment on compassionate grounds irrespective of the reasons stated in A1 and direct the respondents accordingly; iii. Direct the respondents to consider the applicant for an appointment on compassionate grounds under the respondents ignoring the reasons stated in A1 and direct further to grant an appointment within a time frame as may be found just and proper by this Hon'ble tribunal with all consequential benefits thereof; iv. Award costs of and incidental to this application; v. Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."
4. The applicant's father was an employee of the postal department of the Union Government and he had died on 27.8.2010 while he was in service. The applicant's father was otherwise to retire from service consequent to superannuation with effect from 31.3.2011. It appears that the original applicant had submitted the requisite application seeking claim for compassionate appointment on account of the death of his father, and on the ground that his family is in a penurious and indigent situation, and compassionate appointment is highly necessary to enable the family of the deceased employee to tide over the great financial crisis which is looming large before them. Anx. A7(a) is the mark list dated 6.9.2011 issued by the competent authority of the Board of Examination of the General Education Department of the Government of Kerala, which would show that the applicant had passed in all the subjects in the SSLC O.P.(CAT) No.194/2018 4 Examination other than General Science (See page 32 of the paper book of this OP(CAT)}. A reading of Anx.A-7(a) would disclose that the applicant had failed to secure the minimum pass mark of 30 marks in general science as he had secured only 24 marks and hence he was declared as failed in the said examination. Further it appears that the applicant had written the supplementary examination thereafter and had passed in the said failed subject, viz, general science, by securing 49 marks out of 100. Anx.A-7 is the mark list dated 3.12.2012 issued by the competent authority of the Board of Examination of the General Education Department of the Government of Kerala, which would certify that the applicant has passed the SSLC Examination in the second chance {See page 31 of the paper book of this OP(CAT)}. Further, as per the norms the issue as to whether the eligibility conditions are fulfilled is determined as on the date of application, and hence it appears that the authorities concerned had adjudged that the applicant is not having minimum qualification of SSLC and therefore is not eligible to be considered for appointment in compassionate quota. Yet another ground of rejection was also made to the effect that the applicant is not in indigent situation so as to warrant his case to be considered for compassionate appointment. The abovesaid decision that the applicant was not having the minimum qualification to be considered for compassionate appointment and that he is not in indigent situation etc has been rendered by the competent authority of the postal O.P.(CAT) No.194/2018 5 department in the meeting held on 30.9.2013 and 1.10.2013. It is also common ground that in the said selection conducted on 30.9.2013 and 1.10.2013, the successful candidates were given RMP points (Relative Merit Position points) as per the norms within the range of 44 to 39.
5. Being aggrieved by the rejection of the applicant's case, he was constrained to approach the Central Administrative Tribunal, Ernakulam Bench, by filing O.A.No.785/2014 which ultimately culminated in Anx.A-3 final order dated 4.2.2016 rendered by the CAT, Ernakulam Bench, in the said O.A. No. 785/2014. In Anx.A3 final order rendered by the Tribunal, the Tribunal after hearing both sides and after meticulous consideration of the pleadings and materials on record found that the grounds of rejection are unsustainable and further that the stand of the respondent authorities therein that the applicant was not having the minimum qualification to be considered for compassionate appointment is also legally wrong inasmuch as, the norms as per Anxs.A-8 & A-9 therein would also conceive of relaxation of minimum qualifications to the candidates concerned, so that they could be subjected to initial training and then absorb them after securing the minimum qualifications. In that view of the matter the Tribunal found that the rejection of the case of the applicant by the authorities concerned on account of the decision rendered by them in the meeting held on 30.9.2013 and 1.10.2013 is illegal and unreasonable. Accordingly, the Tribunal has quashed the rejection order O.P.(CAT) No.194/2018 6 and has passed the following directions in para 7 of Anx.A-3 final order, which reads as follows: {See page 26 of the paper book of this OP(CAT)} "7. In the above circumstances and since the impugned decision of the respondents is not in tune with Annexure A/6 & A/7 scheme this Tribunal is of the view that the request of the applicant needs to be reconsidered by the respondent authorities afresh. Accordingly Annexure A/1 is quashed and set aside. The competent authority of the respondents shall reconsider the request of the applicant for appointment on compassionate grounds strictly in accordance with the extant scheme as notified by Government of India from time to time and a decision shall be taken. It is worth reminding the respondents that as per the latest compilation of the scheme on compassionate appointment issued by the DoPT there is no time limit for considering the request for appointment and it can be considered repeatedly provided the applicant fulfills the other criteria stipulated in the scheme. OA is disposed of as above. Parties shall suffer their costs."
6. Thereafter it appears that since the authorities concerned had in limine rejected the application of the applicant consequent to the decision taken by them in the meeting held on 30.9.2013 and 1.10.2013, no RMP points were awarded to the applicant on the ground that he has not even qualified to be considered for compassionate appointment. After the rendering of Anx.A-3 final order, the respondents therein had decided to comply with said directions and the competent authority/committee in in the meeting held on 23.6.2016 considered the case of the applicant and awarded RMP points to him as 46 points. In the said meeting held on 23.6.2016 the competent committee had awarded RMP points to successful candidates which is in the range of 48 to 81 points. Thereafter, the competent authorities concerned have issued impugned Anx.A-1 rejection order dated 25.7.2016 ordering that the case of the applicant for compassionate appointment stands again rejected on the ground that the O.P.(CAT) No.194/2018 7 last selected candidate in the meeting held on 23.6.2016 had secured 48 RMP points, and that since the applicant had secured only 46 RMP points, he could not be selected. Further it is also stated in Anx.A-1 rejection order dated 25.7.2016 that the applicant is not in a relatively penurious situation etc, presumably this is on account of the fact that the other successful candidates had secured RMP points in the range of 48 to 81 and that since the applicant had secured only 46 points, he cannot be said to be as penurious as the successful candidates who secured RMP points in the range of 48 to 81. It appears that the last candidate selected in the meeting held on 23.6.2016 had secured 48 points as per the RMP norms. It is this order at Anx.A-1 that is under challenge before the Tribunal as per Ext.P-1 O.A. No. 912/2016.
7. The Tribunal after hearing both sides has rendered the impugned Ext.P-3 final order dated 21.2.2018 in O.A. No. 912/2016 holding that the respondents therein had committed grave illegality in again rejecting the case of the applicant. The main ground cited by the Tribunal in Ext.P-3 final order is that, there is already an inter partes judgment between the very same parties as per Anx.A-3 final order dated 4.2.2016 rendered by the CAT, Ernakulam Bench in O.A. No. 785/2014 filed by the very same applicant on the very same issue in the previous round of litigation. The Tribunal has found as per the impugned Ext.P-3 order that in view of the quashment and remit of the matter as per Anx.A-3 O.P.(CAT) No.194/2018 8 order of the Tribunal in the previous round, the case of the applicant should have been reconsidered along with the other candidates who were considered in the selection meeting held on 30.9.2013 and 1.10.2013, since the rejection order that was quashed as per Anx.A-3 order was on account of the decision rendered by the competent committee in the selection meeting held on 30.9.2013 and 1.10.2013.
8. It is common ground that in the selection meeting held on 30.9.2013 and 1.10.2013 which is the subject matter of the rejection order quahsed in Anx.A-3 order, the successful candidates had secured RMP points in the range of 39 to 44 points. Whereas, the Tribunal found that the case of the applicant should have been reconsidered along with the RMP position of candidates considered and selected in the selection meeting held on 30.9.2013 and 1.10.2013, and that the act of authorities concerned in considering the RMP points of the applicant along with the fresh candidates who were considered in the subsequent selection meeting held on 23.6.2016 wherein the successful candidates had secured the RMP points in the range of 48 to 81 points, was highly illegal and improper. It is on this main ground that the Tribunal has rendered the impugned Ext.P-3 final order again quashing the impugned rejection order as per Anx.A-1 and directing the authorities concerned to reconsider the case of the petitioner by considering his RMP point vis-a-vis the candidates who were considered in the selection meeting held on 30.9.2013 and 1.10.2013, which is the O.P.(CAT) No.194/2018 9 subject matter of the rejection order which is quashed by the Tribunal in the previous round of litigation as per Anx.A-3 order. It is this order at Ext.P-3 that is under challenge before this Court in this Original Petition filed by the Union of India and the postal department authorities by resort to the provisions contained in Articles 226 and 227 of the Constitution of India.
9. We have heard both sides and given our anxious consideration to rival pleas. The case of the applicant was rejected in the previous round which resulted in Anx.A-3 final order of the Tribunal. At that time, two grounds of rejection were cited. The first ground was that the applicant was not in a penurious condition. The second ground was that the the applicant has not secured the minimum qualification of pass in SSLC examination, and therefore he is not qualified for appointment in the compassionate quota. Both these grounds were held by the Tribunal based on irrelevant considerations and not after reckoning all the relevant parameters. The Tribunal as per para 7 of Anx. A-3 order had quashed the impugned rejection order therein and had remitted the matter to the authorities concerned for reconsideration of the case of the applicant. Of course, a reading of para 7 of Anx. A-3 order would indicate that the word 'afresh' has also been used by the Tribunal therein inasmuch as, the direction is that the case of the applicant should be reconsidered by the respondent authorities therein afresh.
O.P.(CAT) No.194/2018 10
10. After hearing the submissions made on behalf of the petitioners it appears that, the petitioners have misconstrued the term 'afresh' appearing in para 7 of Anx. A-3 order to the effect that the applicant's case should be considered as a fresh case along with fresh candidates who had applied later whose case was considered in the subsequent selection meeting held on 23.6.2016. This was a serious fault made by the authorities concerned. The well considered verdict of the Tribunal at Anx.A-3 is to the effect that the rejection order of the Tribunal at that point of time was illegal and based on irrelevant considerations, and therefore the matter was quashed and remitted to enable the reconsideration of the case of the applicant. Therefore the applicant should have been restituted by reconsidering his case by putting his position back to the consideration which was made in the selection meeting held on 30.9.2013 and 1.10.2013, and not vis-a-vis the fresh candidates whose case were considered later in the selection meeting held on 23.6.2016.
11. After hearing both sides we are apprised that since in the previous round the case of the applicant was rejected on the ground that he has not secured the minimum qualification of pass in SSLC, the respondent authorities have not even awarded the relative RMP point to the applicant. Therefore, the quashment and remit made by the Tribunal as per Anx.A-3 necessitated the reconsideration of the case of the applicant by awarding him RMP points in accordance with norms. Awarding of RMP points as per O.P.(CAT) No.194/2018 11 the norms is an objective action to be duly done by the authorities concerned. After considering all the relevant parameters the competent committee/competent authorities have found that the applicant is entitled to secure 46 RMP points. Thereafter, the authorities concerned were legally obliged to reconsider the case of the applicant along with candidates who were considered in the selection meeting held on 30.9.2013 and 1.10.2013, as what is to be done is restitution of the case of the applicant consequent to the quashment and remit by the Tribunal as per Ext.P-3.
12. From the admitted facts it appears that the successful candidates who were considered in the selection meeting held on 30.9.2013 and 1.10.2013 had secured RMP points in the range of 39 to 44 points. Whereas, admittedly the applicant is entitled to secure 46 RMP points. Hence, the applicant should have been adjudged as a candidate who is eligible and penurious enough to be considered for appointment in compassionate quota along with the successful candidates who were considered in the selection meeting held on 30.9.2013 and 1.10.2013. As indicated herein above, the act of the authorities in comparing his RMP vis-a-vis fresh candidates who were considered in the subsequent selection meeting held on 23.6.2016, was a serious legal fault. Hence, the Tribunal is fully right in giving the reasonings and arriving at the impugned conclusions as per Ext.P-3 order to reconsider the case of the petitioner along with the successful candidates who were considered in the selection O.P.(CAT) No.194/2018 12 meeting held on 30.9.2013 and 1.10.2013, and by treating the applicant has secured RMP of 46 points. After hearing both sides we are of the firm view that no grounds have been made out by the petitioners so as to warrant interdiction by resort to the extraordinary discretionary and constitutional powers conferred under Articles 226 and 227 of the Constitution of India.
13. However, Sri.T.V.Vinu, learned Central Government Counsel appearing for the petitioners would point out that there was a direction in the impugned Ext.P-3 final order rendered by the Tribunal that, if necessary, a supernumerary post may also be created for accommodating the applicant, etc
14. A reading of para 13 of Ext.P-3 final order would make it clear that all what the Tribunal has ordered is that the case of the applicant should be reconsidered as afore stated vis-a-vis the previous selection done as per the meeting held on 30.9.2013 and 1.10.2013, and that the mere fact that all the post under 5% compassionate quota would have been filled up by now, shall not be a legal obstacle to his appointment and posting of the applicant if he is found entitled, and that the respondents in the O.A. either among future vacancies or they create a supernumerary post, etc.
15. We make it clear that there is no mandatory direction issued by the Tribunal that a supernumerary post should be created at any cost so as to accommodate the applicant. After complying with the directions in the O.P.(CAT) No.194/2018 13 Tribunal at Ext.P-3 and if it is found that the applicant is entitled for appointment under the compassionate quota, then it is for the authorities concerned to accommodate the applicant either in existing vacancies or in any future vacancy, and the creation of supernumerary post would arise only if future vacancies may not arise in the immediate foreseeable future and not in any other contingency.
16. Further, it appears that the impugned Ext.P-3 final order has been rendered by the Tribunal as early as on 21.2.2018 and the present OP(CAT) has been filed by the petitioners herein before this Court on 23.10.2018. In view of the abovesaid aspects it is ordered that the petitioners herein will immediately comply with the directions and orders passed by the Tribunal as stated herein above without any further delay at any rate within an outer time limit of 2 months from the date of production of a certified copy of this judgment. We modify and clarify the directions and orders of the Tribunal at Ext.P-3 to the abovesaid limited aspect.
17. In that regard it is also relevant to note that, though it appears that the original applicant had not possessed the minimum qualification of pass in SSLC at the time of submission of application, later he has secured the said minimum qualification as can be seen from Anx.A-7 dated 3.12.2012 and so the applicant appears to have secured the minimum qualification at the time of consideration of his pleas in the selection meeting held on 30.9.2013 and 1.10.2013.
O.P.(CAT) No.194/2018 14
With these observations and directions, the above Original Petition (CAT) will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
T.R.RAVI, JUDGE MMG O.P.(CAT) No.194/2018 15 APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00912/2016 DATED 31.10.2016 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 29.12.2016 FILED BY THE PETITIONERS.
EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.
180/01103/2014 DATED 04.08.2015 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH.
ANNEXURE A1 TRUE COPY OF LETTER BEARING NO.RECTT/7-
8/DEPTL/2012 DATED 25.7.2016 ISSUED BY THE
2ND RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE LETTER BEARING
NO.B2/17/RECTT/07/2010 DATED 7.2.2014,
ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE ORDER IN O.A.785/14 DATED
4.2.2016, RENDERED BY THE CAT, ERNAKULAM
BENCH.
ANNEXURE A4 TRUE COPY OF THE LAND VALUE CERTIFICATE
BEARING NO.K.DIS.30845/2012/A8 DATED
10.7.2012, ISSUE DBY THE TAHSILDAR,
THRISSUR.
ANNEXURE A5 TRUE COPY OF THE VALUATION CERTIFICATE
BEARING NO.AB2-1620/2010 DATED 31.12.2010,
ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER
OF THE PWD BUILDINGS SUB DIVISION,
THRISSUR.
ANNEXURE A6 TRUE COPY FO THE LETTER NO.RECTT/7-
8/DEPTL/2012 DATED 24.7.2012 ISSUED BY THE
ASST. DIRECTOR (RECTT).
ANNEXURE A7 TRUE COPY OF THE CERTIFICATE BEARING NO.EB-
26626 ISSUED BY THE GOVERNMENT OF KERALA,
GENERAL EDUCATION DEPARTMENT ST. X
EQUIVALENCY CERTIFICATE.
O.P.(CAT) No.194/2018 16
ANNEXURE A7(A) TRUE COPY OF CERTIFICATE BEARING NO.EE-
24823 ISSUED BY THE GOVERNMENT OF KERALA,
GENERAL EDUCATION DEPARTMENT ST.X
EQUIVALENCY CERTIFICATE.
ANNEXURE A8 TRUE COPY OF THE DEPARMENT OF PERSONNEL &
TRAINING OM NO.14014/6/94-ESTT(D) DATED
9.10.1998.
ANNEXURE A9 TRUE COPY OF THE ORDER BEARING
F.NO.14014/2/2009/ESTT(D) DATED 11.12.2009, ISSUED BY THE GOVERNMENT OF INDIA DEPARTMENT OF PERSONNEL & TRAINING.
ANNEXURE A10 TRUE COPY OF DEPARTMENT OF PERSONNEL & TRAINING MEMORANDUM BEARING F.NO.14014/2/2009 ESTT (D) DATED 3.4.2012.
ANNEXURE R1 TRUE COPY OF THE EXTRACT FROM THE SCHOOL ADMISSION REGISTER-ST. ANTONEY'S H.S. PUTHENPEEDIKA.
ANNEXURE R2 TRUE COPY OF THE JUDGMENT OF OA 220/2013
DATED 11.4.2014 BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
ANNEXURE R3 THE REPRESENTATION OF THE APPLICANT DATED
25.5.2012 TO THE SENIOR SUPERINTENDENT OF
POST OFFICE, TRICHUR DIVISION.
ANNEXURE R3(A) THE ENGLISH VERSION OF THE REPRESENTATION
OF THE APPLICANT DATED 25.5.2012 TO THE
SENIOR SUPERINTENDENT OF POST OFIFCE,
TRICHUR DIVISION.
ANNEXURE R4 TRUE COPY OF DIRECTORATE LETTER
NO.37/33/2009-SPB-I DATED 12.12.2010
(NOTIFICATION) BY THE MINISTRY OF
COMMUNICATIONS AND INFORMATION TECHNOLOGY
(DEPARTMENT OF POSTS).
ANNEXURE R4(A) TRUE COPY OF THE AMENDMENT (NOTIFICATION)
DATED 28.6.2012 BY THE DIRECTOR, DEPARTMENT
OF POSTS.
ANNEXURE R5 TRUE COPY OF THE ORDER OF THE HON'BLE
TRIBUNAL IN OA 60/2010 DATED 14.7.2011 BY
THE CAT, ERNAKULAM BENCH.