Central Administrative Tribunal - Cuttack
S Mallick vs D/O Post on 21 October, 2022
OA 172 OF 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
Present: Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
No. OA 172 of 2017
Sarojkanta Mallick, aged about 43 years, S/o Srichandan Mallick,
presently working as Postal Assistant in Prajatantra Sub Post
Office, Chandinichowk, Cuttack. R/o Gobindapur, PO Gobindapu
Kachheri, PS Aul, Dist Kendrapara.
......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, Mr. S. Rath, counsel
For the respondents: Mr. A. K. Sahu, 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 :
A) The order dtd. 15.07.2016 under Annexure A/6 be quashed.Page 1 of 7
OA 172 OF 2017 B) The Respondents be directed to regularise the service of the applicant for the leave vacancy period from 08.10.1998 to 8.9.2011 and to pay all benefits as admissible to the applicant.
C) 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 1998, kept in waiting list and was engaged as daily wager w.e.f. 08.10.1998, 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 24.10.2008 which was confirmed by Hon'ble High Court of Orissa the respondents issued orders for appointment to the applicant vide order dated 05.08.2011/17.08.2011 and the Page 2 of 7 OA 172 OF 2017 applicant joined as Postal Assistant from 09.09.2011. The respondents further submitted that the representation of the applicant for regualrizing of service against the leave vacancy from 08.10.1998 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 24.10.2008 in OA No. 630/2006 had issued following orders:
"4. Admittedly, the case of the applicant is that his application was of 1998 and he was found entitled for appointment under the compassionate appointment scheme but without considering his claim for appointment, his subsequent candidates were considered and got appointment, which is irregular and illegal. It is admitted in the counter filed on behalf of the Respondents that the applicant ought to have been appointed in any of the post reserved for appointment under the 5% quota. However, as the wait list keeping has been stopped by the Department from 2001, he could not have given appointment on regular basis. However, this matter is being considered by the Department.
5. With the above, we are of the view that it is only proper for this Tribunal to give a direction to the Respondents namely Respondent No. 1 and 2 to consider the case of the applicant within a reasonable time. It is also made clear that the service of the applicant, now he is having, shall be regualrized within six months from the date of receipt of a copy of this order in any of the arising post. If, there is no post arises for confirming the service of the applicant within the prescribed period on this order, it is the duty of the Respondents to see that creating the supernumary post after expiry of six months in order to give appointment to the applicant.
7. With the above observation and direction, this OA stands allowed to the extent indicated above. No cost."
6. The said order was challenged by the Respondents by way of filing WP (C) No. 17104 of 2009 which was dismissed by Hon'ble High Court of Orissa vide Page 3 of 7 OA 172 OF 2017 its order dated 09.12.2009. The order of Hon'ble High Court 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 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 Page 4 of 7 OA 172 OF 2017 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."
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 11 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 Ma. Mallavan (supra) is extracted below:
"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 Page 5 of 7 OA 172 OF 2017 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)
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 1998 was not given appointment. This action of the respondents was Page 6 of 7 OA 172 OF 2017 found to be irregular and illegal in earlier order in OA no. 630/2006 and direction was given to the respondents to regularize the service of the applicant, that he is now having, within six months. 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 year1998. 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. The said fact of department considering the matter was also recorded in the order dated 24.10.2008 passed in OA No. 630/2006. Therefore, the respondents are directed to regularize the service of the applicant from his initial date of posting i.e. in the year 1998. 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 7 of 7