Central Administrative Tribunal - Allahabad
Smt. Alka Srivastava Wife Of Late Rajesh ... vs Union Of India Through Its Secretary on 27 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
Original Application No. 1794 OF 2010
Dated this Friday , 27th day of May, 2011
CORAM:
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
Smt. Alka Srivastava wife of Late Rajesh Kumar
Srivastava residence at House no.S-3/244,
Ardali Bazar, Varnasi City,
District Varanasi. Applicant
Advocate for the applicant:- Sri Indra Raj Singh
V E R S U S
1. Union of India through its Secretary,
Ministry of Finance Department of Revenue,
New Delhi.
2. Chief Commissioner of Income Tax, Lucknow.
3. Commissioner of Income Tax, Varanasi.
4. Income Tax Officer, (H.Q.I) Office of Commissioner.
5. Joint Secretary (Admn.) Central Board of Direct Taxes,
North Block, New Delhi.
..Respondents
Advocate for the Respondents:- Shri S.N. Chaterjee, Counsel for the Union
of India.
O R D E R
By way of the instant Original Application filed under Sec. 19 of the Administrative Tribunals Act 1987 the applicant seeks following reliefs:
i) To issue an order or directions to the respondents to consider for compassionate appointment to the applicant on any skilled post against the existing vacancy from due date and to pay difference of amounts of arrears of salary between regular salary and the Daily Wage within fortnight from the command of the Tribunal.
ii) Award the cost to the applicant.
2. Brief facts of the case are that the late husband of the applicant Shri Rajesh Kumar Srivastava was working as Tax Assistant with the respondents. After rendering more than 25 years of service, he unfortunately died on 11.10.1999 leaving behind the applicant herself, Kum. Nidhi Srivastava daughter 12 years and son Abhinav Srivastava aged about 9 years. It is submitted that at the time of death of her husband the applicant possessed qualification of M.A. (History), B.Ed., daughter of the applicant was studying in 7th Standard whereas the son was studying in 3rd Standard. Since there was acute financial hardship at the time of death of her husband as he was only the bread earner of the family and after his death the applicant has to look after her two children. Therefore, the applicant made a representation on 19th December, 1999 which was followed by reminder dated 15.3.2000 for considering her case for compassionate appointment to Chief Commissioner of Income Tax, Lucknow i.e. respondent No.2. Vide a letter dated 6.7.2000, the applicant was informed by the respondents that at present there is no vacancy under Group C category and his claim will be considered in future (Annexure A.3). Thereafter on 7.5.2001 the applicant again submitted application to Respondent No.1 for considering her case for compassionate appointment, which was replied by respondents vide their letter dated 24.5.2011 stating there in that her case will be considered on availability of vacancy (Annexure A.4). On 10/13.9.2001 an order was passed by respondent No.2, directing the respondent No.3 to employee the applicant on daily basis to meet out the existing financial crisis (Annexure A.5). In continuation of the above an order was passed by Respondent No.3 on 19th September, 2001 by which the applicant was appointed in the office at Varanasi on Daily Wage basis (Annexure A.6). Though the applicant was well qualified but to meet out the financial crisis, she accepted the offer given by the respondents to join on daily wages and a such she joined on 1.10.2011 on payment of Rs. 50/- per day (Annexure A.7). Later on the case of the applicant was recommended by Respondent No.3 to Respondent No.2 vide their letter dated 4.1.2006 for appointment on regular basis (Annexure A.8). When the applicant did not receive any reply from the respondents, she submitted another application on 29.1.2007 to Respondent No.2 praying therein for regularisation of her services. (Annexure A.9). On the above stated representation made by the applicant, the respondent No.2 recommended the case of the applicant to Respondent No.5 vide their letter dated 3rd September, 2009 (Annexure A.10) for considering her case for regularisation. It is submitted that despite the above recommendation the respondent No.5 has tied over the matter and no decision whatsoever has been communicated to the applicant on the above recommendation for regularisation of her services. Faced with this situation the applicant moved another representation on 17.5.2010 supported with some judgements (Annexure A.11) In para No. 18 of the Original Application the applicant has named the person who have been given appointment on compassionate grounds by respondent No.2 vide its order dated 9.1.2001. It is alleged that step motherly treatment has been given to the applicant by not considering her case firstly under the Compassionate Scheme and secondly the recommendation made by the immediate superior authority for regularisation of her services have also not been considered. Hence the Original Application.
3. Upon notice the respondents filed the Counter Reply and contested the claim of the applicant. In para No.8 of the Counter Affidavit it is admitted by the respondent that the representation of the applicant dated 17.6.2010 has been forwarded to the Central Board of Direct Taxes, New Delhi for appropriate consideration of the matter in consultation with the DOPT,Govt. of India.
4. I have heard Shri Indra Raj Singh, Ld. Counsel for the applicant and Shri S.N.Chatterjee, Ld. Counsel for the respondents. Learned Counsel for the applicant has vehemently argued that the respondents themselves kept the case of the applicant for consideration till the vacancy arise in the quota for Compassionate Appointment whereas the persons junior to him, i.e. the person who has submitted the application later to the applicant has been considered and appointment has been given to them. To this effect the allegation has been levelled in para 18 of the Original Application which has not been denied/rebutted by the respondents in the Counter Affidavit. In reply to that the respondents have stated that her claim was considered in terms of the guidelines issued by the DOPT but no specific averment has been made against the person named in the Original Application. Ld. Counsel for the applicant has further argued that the respondent No. 5 i.e. CBDT has not taken any decision on the recommendation dated 03.09.2009 till today and tied over the matter, therefore, direction be given to them to decide her case.
5. On the other hand Shri S.N. Chatterjee Learned Counsel for the respondents has submitted that the Compassionate Appointment cannot be claimed as a matter of right and the claim of the applicant has been considered in the light of the instructions issued by the DOPT from time to time. He placed reliance upon the various judgements viz. Auditor General of India v. G. Ananta Rajeswara Rao, (1994) 1 SCC 192;Umesh Kumar Nagpal v. State of Haryana, JT 1994 (3) SC 525; Life Insurance Corporation of India v. Mrs. Asha Ramchandra Ambedkar, JT 1994 (2) SC 183; Himachal Road Transport Corporation v. Dinesh umar, JT 1996 (5) SC 319; Hindustan Aeronautics Limited v. Smt. A. Radhika Thirumalal, JT 1996 (9) SC 197; and State of Haryana v. Rani Devi, JT 1996 (6) SC 646 and prayed for dismissal of the Original Application. With regard to the averrments made in para No.4.17 it is submitted that the matter is pending before CBDT and no decision has been taken till today.
6 I have considered the rival submissions and have perused the record as well as the Case laws cited by the Ld. counsel for the respondents.
7. Admittedly, immediately after the death of her late husband, the applicant moved an application for considering her case for compassionate appointment. The case of the applicant was kept pending by the respondents on the pretext that there was no vacancy available with them at the relevant time and her case will be considered when the vacancy was available in the said quota. It is appreciable that in order to meet out the immediate financial crisis the respondents themselves with adequacy have taken a decision to appoint the applicant on daily wages. Though the applicant is possessing higher qualification, in order to meet out the exigency at that time she accepted the inferior post only to tide over the financial position. It is also not disputed that the applicant is working on daily wages with the respondents for the last more than 7 to 8 years and her case was also recommended by the Chief Commissioner for giving relaxation in regularisation of her services. Relevant part of letter reads as under:
3. Under the peculiar circumstances as above and further that the deceased officials wife Smt. Alka Srivastava has been working in this department on daily wages basis for the last 7-8 years, the Board may kindly waive the limitation in this particular case of consideration for only three recruitment years so that her case can be considered against vacancies for the current financial year i.e. 2009-10 or 2010-2011.
8. No decision has been allegedly taken by the respondents on this recommendation. Even the representation at Annexure A.11 is stated to have been forwarded to CBDT for orders. In this regard it is relevant to note here that the Counsel for the respondents was not able to point out that the judgement passed by the Honble jurisdictional High Court at Allahabad in Civil Misc. Writ Petition No. 13102/20 in the case of UOI and others Vs. Smt. Asha Mishra & Anr. decided on 7.5.2010 has been challenged by the respondent or has been unsettled by the Higher Court. Once the Honble Jurisdictional High Court has already set aside the O.M. dated 5.5.2003 and no contrary judgement has been cited by the Ld. counsel for the respondents, then the plea taken by the respondents that they are seeking clarification as it is not in conformity with the instructions is against the spirit of judgement passed by the jurisdictional High Court.
9. Since, the respondents have not taken final decision on the representation of the applicant and even the recommendation before CBDT is also pending, therefore, without going into the merit of the case, I deem it appropriate at this stage to direct the respondent No. 5 to take a final decision on the representations dated 03.09.2009 (Annexure A-10) and dated 17.05.2010 (Annexure A-11) in the light that the instructions of the DOPT dated 05.05.2003 has already been set aside by the Jurisdictional High Court in the Civil Misc. Writ Petition No. 13102/20 in the case of UOI and others Vs. Smt. Asha Mishra & Anr. and it is held that it is only the family condition has to be taken into account that whether they could tide over the crisis and was able to live their life in Society with dignity. In the instant case as noted above the respondents themselves sympathetically considered her case despite having no vacancy in the quota, appointed her on daily wages to tide over the sudden crisis. Therefore, I dispose of the OA with a direction to respondents to take final decision in the matter within three months. There is no order as to costs.
(Sanjeev Kaushik) Member (J) sj* ??
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7O.A.NO.1794.2010