Central Administrative Tribunal - Chandigarh
Smt. Nirmal Kumari vs Union Of India (Uoi) on 6 December, 2010
Central Administrative Tribunal,
Chandigarh Bench.
O.A.NO.1004-PB-2009 December 6, 2010
& M.A.No.959/09
CORAM : HONBLE MRS. SHYAMA DOGRA, MEMBER (JUDL.) &
HONBLE MRS. PROMILLA ISSAR, MEMBER (A).
Smt. Nirmal Kumari, aged around 39 years W/o Late Shri Gurdev Raj, CLO 1394, Ex-permanent and confirmed employee of Semi-Conductor Laboratory (SCL), Sector-72, Phase-VIII, S.A.S. Naga (Mohali), District-S.A.S. Nagar,Punjab-160 071, and resident of House No. 319, Sector-04, Kharar, District-S.A.S. Nagar,Punjab.
. Applicant
By : Mr. S.K. Guvera, Advocate.
Versus
1. Union of India (UOI), Through its Secretary, Department of Space (DOS), Antariksh Bhawan, New BEL Road, Bangalore-560094.
2. Semi-Conductor Laboratory (SCL), Sector-72, Phase-VIII, S.A.S. Nagar (Mohali), District-.S.A.S. Nagar, 160059, Punjab through its Director
Respondents
By : Mr. Barjesh Mittal, Advocate.
O R D E R(ORAL)
HONBLE MRS.SHYAMA DOGRA,JM The facts in brief, as projected by the applicant, are that the husband of the applicant was a Member of the Semi-Conductor Complex Limited Employees Union (Regd.). The said Union submitted a charter of demands on 23.4.1998 under section 2K of the Industrial Disputes Act, 1947 and a Memorandum of Understanding dated 7.8.2001 in respect of non-executives pay-scales and other benefits was signed between the workmen of the Union and the representatives of the respondent no. 2 under Section 18 (1) of the Industrial Disputes Act, 1947.
2. It is claimed by the applicant that the service conditions of the husband of the applicant were governed by the afore-said MOU which was binding on both sides. The said MOU was approved by the Government of India and was circulated in respect of non-executive employees. Clause 18 of the order provided, inter-alia, that all the existing facilities and fringe benefits other than those specifically mentioned in the Settlement shall continue.
3. Earlier respondent no. 2 was known as Semiconductor Complex Limited (SCL) but from March, 2005 it was converted into a Society and now it is under the administrative control of the Department of Space (DOS), ISRO Headquarters, Bangalore. The DOS took a decision on 8.11.2005 to restructure M/s SCL, as a Government of India Society by registering it under the Societies Registration Act, 1856, as amended from time to time. It adopted Central Dearness Allowance (CDA) pattern of pay scales.
4. In response to an option dated 16.6.2005, the husband of the applicant gave an option for becoming employee of the Society under the CDA pattern of pay scales. He was appointed in the respondent Society. He, however, expired on 21.102007 leaving behind applicant, her mother-in-law, one minor son and one minor daughter. The applicant submitted a letter dated 5.12.2007 to the respondent no. 2 (Annexure A-6) seeking compassionate appointment for herself in the SCL on the basis of the office order dated 30.10.1984.
5. It is claimed that earlier respondents used to pay an amount out of Death Benevolent Fund of Rs.,1,25,000 and payment of funeral expenses of Rs.2,500/- in terms of the MOU benefit of which has not been extended to the applicant and she has also been denied appointment on compassionate grounds.
6. It is submitted that any provision which takes away the valuable right of the applicant guaranteed under Article 21 of the Constitution of India is liable to be struck down being ultra vires and unconstitutional in view of the law laid down in Jagjeet Singh Vs. State of UP, 1995 (01) Education & Service Cases 329-1995(2) SCT 560. Maneka Gandhi Vs. UOI 1978 SC 597; Delhi Transport Corporation Vs. DTC Mazdoor Congress AIR 1991 SC 101. D.K. Yadav Vs. J.M.A. Industries 1993 (2) SCC 259. O.P.Gupta Vs. Union of India, AIR 1987 SC 2257. Consumer Education and Research Centre Vs. UOI AIR 1995 SC 922 Kirloskar Brothers Limited Vs. ESI Corporation, AIR 1996 SC 3261. The respondents are under obligation to justify their action on the touch stone of justness, fairness, reasonableness and as reasonable prudent employer, in view of law laid down in Mahesh Chandera Vs. Regional Manager, AIR 1993 SC 935.
7. It is claimed that the applicant is entitled to the compassionate appointment in view of earlier Scheme of Appointment on Compassionate Grounds issued vide CMDs office order dated 30.10.1984 (Annexure A-1) and precedents as per Annexure A-2. It is claimed that even appointments on compassionate ground have been given to contractual employees. Even in respect of accidental death of one Shri Ram Bhagat, and his wife was paid a sum of Rs.2,00,000/-.
8. The applicant has, thus, prayed for quashing the orders vide which her request for compassionate appointment has been rejected and for issuance of direction to the respondents to give her appointment on compassionate ground in terms of the Scheme dated 30.10.1984 (Annexure A-1) and as per precedents and to release her payment out of Death Benevolent Fund of Rs.1,25,000 with penal interest and funeral expenses also.
9. The respondents have filed a reply. They submit that Original Application is barred by time having been filed after a period of 2 years from the date of cause of action. To support this contention, reliance is placed by them on section 21 of the Administrative Tribunals Act, 1985 as well as on decision of Constitution Bench of Apex Court in the case of S.S. Rathore Vs. State of M.P. 2009 AIR 1990 SC 10. Placing reliance on decision in the case of Union Territory, Chandigarh and Others Vs. Racho Devi & Another, 2008 (2) SCT 602, it is submitted that appointment on compassionate grounds cannot be offered after a long time of survival of the family nor can it be used as an alternative mode of recruitment post for a post.
10. On the basis of decision in the case of Santosh Kumar Dubey Vs. State of U.P. & Others, 2009 (3) SCT 629, it is claimed by the respondents that compassionate appointment is given only when family has plunged into financial crises occurring due to death of the bread-winner. It is not another course of recruitment and cannot be treated as a bonanza and also as a right to get a government service. To the same effect are decisions in Steel Authority of India Ltd. Vs. Madhusudan Das & Ors 2009 (1) SCT 449 and Mumtaz Yunus Mulani Vs. State of Maharashtra, 2008 (2) SCT 669. Since the deceased had become employee of Society w.e.f. 1.9.2006, the applicant cannot seek benefit of instructions applicable in erstwhile SCL Company. Consequent upon the registration of the SCL Society, all the existing terms and conditions / Memorandum of Understanding between the management of erstwhile SCL and its employees/Union ceased to operate/remain effective or binding on the newly formed Society. The deceased had consciously and voluntarily accepted and exercised his option to continue in service with Semiconductor Laboratory Society and elected to be governed by terms and condition of Annexure I pursuant thereto appointment letter dated 1.9.2006 was issued in his favour.
11. It is claimed that with effect from 1.9.2006, Fundamental Rules and Supplementary Rules (FRSR) along with other service rules have been made applicable to the newly registered Society as per Minutes (Annexure R-4). In the same meeting the CCS (Conduct) Rules, 1964 and Department of Space (CCA) Rules, 1976 were adopted for the society w.e.f. 1.9.2006. Since the inception of SCL w.e.f. 1.9.2006, no person has been appointed on compassionate grounds in SCL society w.e.f. 1.9.2006 till date. No recruitment has taken place in SCL Society against Group C and D posts. In view of these facts, the Policy dated 30.10.1984 has lost its relevance.
12. It is submitted that the claim of applicant was considered in terms of DOS office memo dated 4.4.2005 (Annexure R-7) regarding Economy in Expenditure and Government Scheme / Orders for appointment on compassionate grounds and it was found that it is not possible to give compassionate appointment to the applicant. The instructions do not allow loss making PSU units to fill up vacancies (Annexure R-9). The benefit of Death Benevolent Fund or Funeral Expenses cannot be given as per old MOU, which is not applicable to the respondent Society.
13. The applicant has not filed any rejoinder
14. We have heard learned counsel for the parties and perused the material on the file.
15. The applicant has also filed an M.A.No.959 of 2009 for condonation of delay in filing the Original Application. Though we do not find any ground made out in the M.A. for condonation of delay, yet condone the delay in filing the Original Application by way of indulgence and in the interest of justice. M.A. stands disposed of accordingly.
16. From the pleading of the parties, it becomes apparent that the deceased was employee of the erstwhile SCL Company and the said Company was converted into a society namely Semi Conductors Limited and employees were given an option to opt for the service of the SCL Society w.e.f. 1.9.2006 and from this date the Society also adopted rules and regulations of the Central Government like FRSR and CCS (Conduct) Rules etc. There was a clear cut provision in the conditions of transfer of the employees that consequent upon the registration of the SCL Society, all the existing terms and conditions / MOUs between the management of erstwhile SCCL and its employees / Union ceased to operate / remain effective or binding on the new formed society namely SCL. In that view of the matter even the Scheme, Annexure A-1, on which emphatic reliance has been placed by the applicant lost its relevance after adoption of FRSR and other service rules meant for the Central Government Employees. It was done as a policy decision and the deceased had opted to join the service of the new Society. Thus, by his own act and conduct, the deceased chose to be governed by the rules and regulations to be adopted and followed by the new society more so when all the existing terms and conditions or MOUS ceased to operate on formation of the Society. The applicant is also bound by the act and conduct of the deceased in coming over to the Society. The applicant cannot challenge the formation of the Society or its decision to follow new rules and regulations, when the earlier rules and regulations including scheme for appointment on compassionate ground or scheme of payment on account of Death Benevolent Fund of Rs.1,25,000/- or Funeral Expenses etc. were not adopted by the newly formed Society. The applicant can claim some benefits under the existing rules being followed by the Society and not under some rules which have been rendered obsolete with formation of the Society. For the same reason, the Memorandum of Understanding dated 7.8.2001 in respect of non-executive employees and other benefits which was signed between the workmen of the Union and the representatives of the respondent no. 2 under Section 18 (1) of the ID Act, 1947, also lost its relevance and ceased to operate. Thus, she cannot claim that her claim has to be considered under the old Scheme only and action of the respondents cannot be faulted with. The reliance placed by the applicant on various decisions mentioned above is of no help to her as the decisions are clearly distinguishable on the facts and law involved in this case. In any case, under the Central Government Instructions, if dependent of a deceased government employee is not given any employment on compassionate appointment within a period of three years from the date of death of the employee, his or her case is closed as the same cannot be kept pending for all times to come. This kind of process has been upheld by the Honble High Court in the case of Racho Devi (supra). Moreover, in this case there is also no post with the respondents to offer appointment to the applicant and they have not made any appointments on compassionate grounds after the formation of the SCL Society in 2006.
17. It has been explained by the respondents that due to financial crunch they are not in a position to fill in any post and once there are no posts for direct recruitment, the question of 5% quota also does not arise and claim of the applicant cannot be considered as there is no post.
18. In view of the above discussion, we find no grounds made out to interfere with the action of the respondents. O.A. is found to be devoid of any merit and is dismissed. No costs.
(PROMILLA ISSAR) (SHYAMA DOGRA)
MEMBER (A) MEMBER (J)
Place: CHANDIGARH
Dated: 06.12.2010
HC*
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