Central Administrative Tribunal - Delhi
Sanjeev Kumar vs M/O Health And Family Welfare on 8 August, 2024
1
Central Administrative Tribunal
Principal Bench
OA No. 846/ 2021
Reserved on:02.08.2024
Pronounced on : 08 .08.2024
Hon'ble Mr. Rajinder Kashyap, Member (A)
Sanjeev Kumar S/o Late Om Prakash
R/o C-33/B, Paryavaran Complex
Saidulajaib, New Delhi-110030
- Applicant
(Through Advocate: Mr.Harish Sharma)
Versus
1. Union of India,
Ministry of Health & Family Welfare
Through Secretary
Nirman Bhawan, New Delhi.
2. Deputy Director (Admn.)
Safdarjung Hospital, New Delhi.
3. The Medical Superintendent
VMMC & Safdarjung Hospital
New Delhi
-Respondents
(Through Advocate: Mr.Y.P. Singh)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act.1985, seeking the following relief(s):-
"(a) Set aside the speaking order dated 5.8.2015 passed by the respondents.2
(b)Direct the respondents to consider the Application Form of the petitioner and appoint the petitioner at the poist of driver and /or nursing attendance aftger fulfilling all requisite formalities required for the appointment of said post.
© Compensate the applicant for mental and physical torture and harassment."
2. The brief facts of the case are that the applicant has applied for compassionate appointment as his mother (Late Smt. Santoshi Devi), who was working as Nursing Assistant in the Safdarjung Hospital, passed away on 12.01.2010. Earlier, the applicant has filed OA 38/2012, wherein, while disposing of the above mentioned OA, this Tribunal vide an order dated 30.07.2012 observed that the case of the applicant for appointment on compassionate ground be considered and the decision thereof be communicated to the applicant by way of speaking order as per the terms and conditions stipulated for appointment of compassionate appointment ground as per the scheme dated 09.10.1998.
3. The respondents passed a speaking order on 05.08.2015 wherein they have stated that compassionate appointment committee was constituted in the Safdarjung Hospital (Organization where respondents are working and where the 3 applicant has sought compassionate appointment) considered the case of compassionate appointment. They further state that on 15.03.2013, the committee considered the cases of 49 candidates including the applicant. It is mentioned that after thorough consideration of the candidates the committee recommended the name of the candidates for providing employment on compassionate basis. The name of the applicant was not recommended by the committee. The applicant, again, applied for compassionate appointment on 29.04.2013. In the meanwhile, some more cases were received by the respondents and while considering all the cases they observed that the case of the applicant was earlier rejected and therefore his case would again be considered alongwith others for appointment on compassionate ground in the next ensuing meeting. Accordingly, having considered the facts of the case, the applicant was informed that it is not possible to grant compassionate appointment in terms of the conditions of the recommendations of the committee dated 15.03.2013. The speaking order dated 05.08.2015 passed in pursuance to the decision dated 30.07.2012 of this Tribunal in OA No. 38/2012 was 4 conveyed to the applicant. The applicant has challenged the order dated 05.08.2015 as impugned order. It may be relevant to mention that prior to filing the OA No.38/2012 the applicant has filed another OA No. 3670/2011, which was heard on 12.10.2011 and the following orders there were passed:-
"4. In view of the limited prayer of the applicant, as referred to above, it may not be expedient to keep this mater pending any further as it may appropriately be disposed of by issuing directions to the respondents to consider the applicant's representation referred to above along with this OA as a supplementary representation. In case, the respondents consider him fit for appointment on compassionate ground and there is a vacancy available for the purpose, they may proceed to initiate further necessary action in the matter accordingly. Otherwise, they shall inform the applicant the reasons for not doing so through speaking order. The entire exercise shall be completed within a period of one month from the date of receipt of a certified copy of this order.
5. The application is disposed of in above terms. No order."
4. Thereafter, the applicant has filed another OA No. 38/2012 in which this Tribunal has passed the following order on 30.07.2012 as under:-
"2. It goes without say that outcome of such consideration by the representation shall be communicated to the applicant by way of speaking order.
3. OA stands disposed. No costs."5
5. The respondents have passed the speaking order dated 05.08.2015 as per the directions dated 30.07.2012 given in OA No. 38/2012. Aggrieved by the above mentioned order of respondents, the applicant has filed the present OA with the aforementioned prayers.
6. The applicant has also filed a Writ Petition (C) No. 9526/2020 before the Hon'ble High Court of Delhi in which the Hon'ble High Court on 27.11.2020 has passed the following directions:-
"1. Petitioner herein seeks compassionate appointment to the post of a Driver or Nursing Assistant or any other post with Safdarjung Hospital.
2. Petitioner had earlier filed an OA which was disposed of by directing the Respondents to pass a speaking order. The speaking order has since been passed on 05.08.2015. Challenge in the present petition is also to the said order.
3. Petitioner is amenable to the jurisdiction of the Central Administrative Tribunal by virtue of the provisions of Section 14 of the Administrative Tribunals Act, 1985 and the dicta of the Supreme Court in L. Chandra Aumar vs. Union of India (1997) 3 SCC 261. Present petition is thus not maintainable in this Court and cannot be entertained.
4. At this stage Mr. Harish Sharma learned counsel for the Petitioner, on Instructions, seeks to withdraw the present petition, with liberty to approach the Central Administrative Tribunal.6
5, Petition is disposed of as withdrawn with liberty, as prayed."
7. Reply has been filed by the respondents on 17.04.2023. In their reply, the respondents have stated that the applicant was engaged by the M/s Durga Guard Consultancy Services for providing some services in Safdarjung Hospital and it was they who deputed him to perform some duty in the year 2008 at Safdarjung Hospital. They said that Safdarjung Hospital has neither engaged the applicant at any point of time and nor gave him any assurance for appointment as a Driver. It was also stated by them that Sant Johns Ambulance Association is not related with the Respondent No.2 i.e., Safdarjung Hospital. The respondents has stated that they advertised the post of Driver and as per the Recruitment Rules the age requirement was from 18 to 25 years. As per the Government Rules/Instructions the maximum age relaxation for SC /ST candidates was 5 years and 3 years for the OBC candidates. The applicant's date of birth is 19.06.1977 and thus he was overage at the time of closing date of the application i.e. 03.10.2010. The respondents further mentioned that the Hospital 7 advertised the post of Nursing Assistant as per the Recruitment Rules. The age requirement for the said post was from 18 to 25 years. As per the Government Rules/ Instructions, the maximum age for the SC/ST candidates was 5 years and 3 years for the OBC candidates. The applicant's date of birth is 19.06.1977 and thus he was overage at the time of the closing date of the application in the year 2011. The application of the applicant for the post of Driver and Nursing Attendant was considered alongwith others but due to overage his application was not considered further. It is, further, stated that the applicant was considered for compassionate appointment by the Committee but owing to constrain with regard to the availability of the post and other parameters contained in the aforesaid guidelines issued from the DOP&T the applicant could not be offered the appointment on compassionate ground.
8. Heard the learned counsels for the parties. While making oral arguments, the main contention of the respondents is that the candidature of the applicant was not considered as he has crossed the upper age limit as prescribed in the Recruitment Rules for the 8 post of Driver and Nursing Attendant. Therefore, the case of the applicant was not considered for appointment on compassionate ground as he has crossed the upper age limit as stipulated in the Recruitment Rules for the post of Nursing Assistant and the Driver.
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9. The applicant claimed to be a Scheduled Caste community. He has also produced the certificate which is available in the case file of the applicant. The applicant has also filed rejoinder on 04.12.2023 to the counter affidavit filed by the respondents before the Tribunal and has reiterated the submission made earlier during the course of the arguments. The applicant states that the respondents neither considered him for the post of Driver nor for the post of Nursing Attendant even after possessing the requisite qualifications and well within the age criteria. The posts were filled up without considering the applicant for appointment. He states that he has no employment /source of income from any corner and he is unable to maintain his family. He states that the respondents neither considered him for the post to which he has applied in reply to their advertisement 9 nor was he considered for compassionate appointment. He further states that the Medical Superintendant, Safdarjung Hospital, vide is reply dated 02.06.2023 in response to RTI inquiry provided the particulars of incumbents selected and appointed against the posts showing names of post, name of the candidates appointed and their date of birth, reveal that five candidates were appointed. The details of the above information is at page 148 and 149 of this OA. It reveals that one candidate, namely, Smt. Sunita whose date of birth has been shown as 08.03.1977 has also been selected and appointed. The said Smt. Sunita is much elder in age as compared to the present applicant before us. It may be mentioned that the respondents provided information on appointment on compassionate grounds on 02.06.2013 wherein they have informed that five posts were filled up on the basis of interview held on 15.03.2013. The names of selected candidate alongwith their designation and date of birth are as follow:- 10
Sr. Name of Name of Date of birth Date of NO candidate designation receipt of application
1. Smt. Shalu LDC 06.04.1980 22.11.2011 Sharma
2. Ms.Resham LDC 12.12.1990 24.11.2012 Sajnani
3. Ms. Sherina LDC 12.06.1992 12.02.2013 Sunny
4. Mrs. Sunita Nurshing 08.03.1977 26.09.2011 Attendant
5. Sh. Mukul LDC 26.09.1989 14.08.2012
10. It is evident from the above table that candidate Smt. Sunita whose date of birth is 08.03.1977 has been appointed as Nursing Attendant. As per the Recruitment Rules for filling up the post of Nursing Attendant, the age requirement in the Recruitment Rules for the said post is specified as 18 to 25 years. As per the Government Rules /Instructions the stipulated age relaxation is 5 (five) years to SC/ST candidates and 3 (three) years for OBC candidates. The interview for deciding the above mentioned five compassionate appointments has been held on 15.03.2013. Hence, the age of Smt. Sunita who was selected as Nursing Attendant has crossed the age 35 years, which is much beyond even the age relaxation limit as prescribed under the Recruitment Rules. 11
11. Now, the question arises whether the age of a candidate seeking compassionate appointment can be relaxed beyond the Recruitment Rules? Answer to this question is available on the frequently asked questions (FAQs) on compassionate appointment prepared by the Establishment 'D' Division and available on the website of the Department of Personnel and Training having number DOP&T's No.14014/02/2012-Estt (D) Dated 30th May, 2013. For the sake of convenience the questions and answers are produced below:-
Question:
What is the upper and lower age limit for making compassionate appointment?
Answer:
The age limits would be based on the Recruitment Rules of the post to which the compassionate appointment is proposed to be made.
Question:
Whether upper age limit prescribed for a post can be relaxed while making appointment on compassionate ground.12
Answer:
Yes: Upper age limit can be relaxed wherever found to be necessary.
12. In view of the above, the present Original Application is allowed with the following directions:-
(a) The speaking order dated 05.08.2015 passed by the respondents is set-aside.
(b) The respondents are further directed to consider the case of the applicant for compassionate appointment within a period of eight weeks from the date of receipt of a certified copy of this order.
(c) A cost of Rs. 5000/- each is imposed upon the respondent nos.2 & 3, which shall be deposited in the CAT, Bar Association, (Library Fund).
Pending Miscellaneous Application, if any, stands closed.
(Rajinder Kashyap) Member (A) /mk/