Kerala High Court
Union Of India vs Achamma John
Author: Anil K. Narendran
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938
WP(C).No. 22476 of 2009 (Z)
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OA 472/2008 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
..........
PETITIONER(S)/RESPONDENTS:
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1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
GOVT. OF INDIA,
MINISTRY OF COMMUNICATIONS, NEW DELHI.
2. THE CHIEF POSTMASTER GENERAL,
KERALA CIRCLE, THIRUVANANTHAPURAM.
3. THE SENIOR SUPERINTENDENT OF POST OFFICES,
KOLLAM DIVISION, KOLLAM.
BY ADV. SRI.S.KRISHNAMOORTHY, CGC
RESPONDENT(S):
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1. ACHAMMA JOHN, W/O.A.JOHN,
RESIDING AT ROY VILASAM,
PERUMPUZHA P.O., KOLLAM.
2. ROY JOHN, S/O.A.JOHN,
RESIDING AT ROY VILASAM,
PERUMPUZHA P.O., KOLLAM.
BY ADVS.SRI.P.K.MADHUSOODANAN
SRI.P.M.BINOY KRISHNA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 22476 of 2009 (Z)
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APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1 : TRUE COPY OF THE OA.NO.472 OF 2008 FILED BY THE
RESPONDENT BEFORE THE CAT ERNAKULAM BENCH.
EXT.P2 : TRUE COPY OF THE REPLY STATEMENT DATED 29.1.09 FILED
BY THE PETITIONERS.
EXT.P3 : TRUE COPY OF THE MA.NO.414/09 DATED 4.6.2009 FILED BY
THE RESPONDENTS.
EXT.P4 : TRUE COPY OF THE CAT ORDER DATED 16.6.09 IN
OA.NO.472/08.
EXT.P5 : TRUE COPY OF THE AMENDED RECRUITMENT PROCEDURE FOR
POTAL ASSISTANT/SORTING ASSISTANT DATED 9.6.2003.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
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W.P.(C)No.22476 of 2009
.........................................................................
Dated this the 1st July , 2016
J U D G M E N T
P.R. Ramachandra Menon, J.
The direction given by the Central Administrative Tribunal, Ernakulam in O.A.No.472 of 2008, to consider the claim of the second applicant before the Tribunal for 'compassionate appointment' to the post of Postal Assistant based on Annexure- A10 'Equivalence Certificate' issued by the Director, relying on the Government Order to the effect that the qualification of VHSC will be equivalent to 'Plus 2' level, so as to have claimed such appointment, is under challenge by the respondents before the Tribunal, raising many a ground including that the financial position of the 2nd applicant was considered in detail by the Circle Relaxation Committee(CRC), who took a decision to the effect that he was only to be considered for the post of Group W.P.(C)No.22476 of 2009 2 'D'/Postman and that he was not qualified to be accommodated against the post of 'Postal Assistant'.
2. The factual position in relation to the claim is that the husband of the first applicant, i.e. Father of the second applicant was working in the Postal Department , who bid farewell to this world on 16.01.2005. Immediately thereafter, an application for 'compassionate appointment' to the second applicant was submitted; projecting the frustrating pecuniary circumstances. The second respondent in fact had submitted an application both for the post of 'Postal Assistant' and also for the post of 'Postman'. All the relevant particulars as sought for to claim the eligibility for getting compassionate appointment were given then and there. It is also stated that the matter was considered by the Circle Relaxation Committee in their meeting held on 22.03.2006 and based on the outcome of the inference/finding, the claim for appointment was rejected as per Annexure A9 dated 18.10.2007, which was subjected to challenge by filing O.A.No.472 of 2008 before the Tribunal.
W.P.(C)No.22476 of 2009 3
3. The respondents before the Tribunal vehemently opposed the reliefs sought for, mainly contending that the financial status of the 2nd applicant was considered in comparison with the traits/credentials of other eligible candidates and it was accordingly, that a decision was taken rejecting the claim. It was also contended that, as per the relevant recruitment rules, the second applicant could have been considered only against the post of Group 'D'/Postman and not against the post of 'Postal Assistant' as he was not having the qualification of 'Plus 2'. The second applicant's claim was that he had passed VHSC, which was equivalent to 'Plus 2', as ordered by the Government of Kerala. A copy of the 'Equivalence certificate' issued by the Director was also produced as Annexure-A10, wherein a specific reference was made to the relevant Order (G.O.(Rt) No.2700/03/GE. dated 10.07.2003)issued by the Government in this regard.
4. After hearing both the sides, the Tribunal held that the case projected before the Tribunal as per the reply statement W.P.(C)No.22476 of 2009 4 did not reconcile with the grounds stated in Annexure-A9 rejection. The Tribunal also found that, as per the 'Equivalence' certified by the competent authority, the claim of the applicant was to be considered in the light of the said certificate, for the post of 'Postal Assistant'. The stand of the Department was deprecated, in so far as the claim was considered and recommended in respect of the post of Postman/Group 'D' under the Compassionate Appointment scheme, but he was not given appointment for want of vacancy for the year 2005; whereas he was found unfit for want of qualification in respect of the other post, denying the appointment. It was in the said circumstance, that a positive direction was given to have his case considered for the post of 'Postal Assistant', based on the 'equivalence' of the qualification certified by the competent authority and also directing that the delay shall not be a bar in giving effect to the direction. The Tribunal also deprecated the stand of the Department in contending with reference to the law declared by the Supreme Court to the effect that 'long delay' in claiming W.P.(C)No.22476 of 2009 5 appointment under the compassionate scheme would be a bar in claiming such benefit. This in turn is under challenge in this appeal.
5. The learned Standing Counsel for the petitioners sought to justify the course of action pursued by the Department rejecting the claim as per Annexure-A9. The learned Standing Counsel submitted that various aspects had to be considered so as to ascertain the financial status of the claimants and that, persons with better rating alone could be given appointment. The financial status of the second applicant cannot be cited as a ground or instance to promote the case of the petitioners herein, in so far as all the relevant traits have been considered by the Committee and as per Annexure R2, it has upheld the eligibility, thus recommending the name of the second applicant to be appointed as a Group 'D/'Postman'. It is further submitted that the appointment however could not be given, for want of vacancies to accommodate the second applicant.
6. In so far as the eligibility with reference to the financial W.P.(C)No.22476 of 2009 6 status was considered and affirmed by the Department itself, it is no more open for the petitioners to raise a ground with reference to the financial status, to deny the consideration in respect of post, i.e., 'Postal Assistant'. In other words, the only point to be considered is whether rejection of the claim for want of sufficient qualification, i.e., 'Plus 2' was correct or proper.
7. The second applicant is admittedly having the qualification of VHSC. The Government of Kerala has made it clear, as per the G.O.(Rt)No.2700/03/GE dated 10/07/2003, to the effect that 'VHSC' could be treated as equivalent to 'Plus 2' and it was accordingly, that Annexure-A10 was issued by the Director, Vocational Higher Secondary Education.
8. It was in the said circumstance, that the Tribunal directed the matter to be considered with reference to such qualification and to give appointment to the second applicant. It was also noted that altogether 'nine' vacancies of postal assistants were available for the year 2005 and only 'five' candidates were there, to be appointed. As such, if the W.P.(C)No.22476 of 2009 7 qualification possessed by the second respondent(applicant), which has been certified as equivalent to 'Plus 2' was considered then and there, appointment could have been offered. This alone has been done by the Tribunal.
9. The learned Standing Counsel for the petitioners made a submission that the Recruitment Rules are quite specific, stipulating to have 'Plus 2' for appointment to the post of Postal Assistant and no equivalent qualification was contemplated under any circumstance. The learned Counsel submitted that recruitment to the post of Postal Assistant is governed by the Department of Posts (Postal Assistants and Sorting Assistants) Recruitment Rules 2002 and that the minimum qualification to apply for these posts was laid down as '10 + 2 standard' or '12th class' pass of a recognised university or Board of School Education or Board of Secondary Education, with English as a compulsory subject (excluding vocational streams). Annexure- A10 certificate produced by the second applicant was not liable to be considered in the said circumstance, submits the learned W.P.(C)No.22476 of 2009 8 counsel.
10. The petitioners have not produced the recruitment rules either before the Tribunal or before this Court. The 'equivalence' was certified by the Government after formulation of the Rules as per G.O.(Rt)No.2700/03/GE dated 10.07.2003. The various subjects, which were being taught at the relevant time when the G.O. was issued and the requisite level of knowledge gathered by the students under the relevant course, would have been subjected to specific consideration by the Government when the said G.O. was issued, which was the basis for issuing Annexure
-A10 . That apart, we find that such a contention has been taken for the first time in 'Ground B' of the writ petition; which was never there in Ext.P2 reply statement filed before the Tribunal. As such there was no need, necessity or occasion for the Tribunal to have it considered. The Recruitment Rules have not been produced either before the Tribunal or before this Court as well. In the said circumstance, we find that the direction given by the Tribunal does not require any interference at the hands of this W.P.(C)No.22476 of 2009 9 Court.
11. It is brought to the notice of this Court during the course of hearing, that when the matter came up for consideration on 27.08.2009, an interim order was passed by this Court to the following effect:
"Admittedly, there are seven vacancies of Postal Assistants remaining to be filled up , in the year 2005. The date of death of the husband of the first respondent is 16.1.2005 and the application was filed shortly thereafter. After hearing the vehement arguments of Shri S. Krishnamoorthy we find that the matter requires interpretation of rules. Therefore, issue notice by Speed Post. In the meanwhile, there will be a direction to the petitioners to appoint the applicant forthwith, at any rate, within two weeks, subject to the result of the writ petition".
This was sought to be varied by filing I.A.No.11113 of 2009. The I.A. was considered and dismissed by this Court on 16.09.2009, for the reasons already discussed herein before.
12. We find that no specific pleading was raised by the petitioners before the Tribunal in relation to the above Recruitment Rules, which in fact were not even produced before W.P.(C)No.22476 of 2009 10 the Tribunal. As such, interference is declined and the writ petition is dismissed. It is however made clear that the issue regarding 'equivalence' in relation to the Department of Posts (Postal Assistants and Sorting Assistants) Recruitment Rules 2002 is left open and the verdict passed by this Court and the Tribunal, in so far as the claim of the applicant is concerned, need not be treated as a precedent.
P.R. RAMACHANDRA MENON, JUDGE ANIL K. NARENDRAN, JUDGE lk