Allahabad High Court
Union Of India Thru Defence ... vs Smt. Raj Kumari & Others on 31 July, 2012
Bench: Uma Nath Singh, Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 5
Writ Petition (A) No. 73829 of 2011
Union of India and others ... Petitioners
Vs.
Smt. Raj Kumari and others ... Respondents.
Hon'ble Uma Nath Singh,J.
Hon'ble Ran Vijai Singh,J.
We have heard learned counsel for the parties and perused the pleadings of writ petition.
This writ petition has been preferred against an order dated 5th May, 2011 passed by Central Administrative Tribunal Allahabad Bench in O.A. No. 299 of 2011 whereby the case of respondent was remanded for consideration in the light of instruction vide A-14 dated 22.1.2010 and with direction to pass appropriate orders in accordance with law. Instead of considering the case of petitioner in terms of directions, the Union of India has assailed the order on the ground that the respondent was entitled to be considered only against the past vacancy. His case was taken up twice and it did not find favour with the authority because the petitioner was placed lower in the comparative merit drawn by the authority.
Sri S.K.Rai, learned counsel appearing for the Union of India, inter alia, submitted that the case of petitioner had been considered threadbare for appointment on compassionate ground and the Central Administrative Tribunal has passed the order exparte. Thus, the petitioner was not given any opportunity to submit a reply in order to clarify the position as to how the case of petitioner was required to be considered only in the light of instruction of 2001 and not in the context of instruction of 2010. During the course of his arguments, Sri Rai, took us to annexure 5, the instruction of 1.2.2010, with particular reference to paragraph 6. The said paragraph is reproduced as follows :-
6. "It is, therefore, requested that the revised points system should be allowed to be implemented/incorporated in respect of applications which are expected to be received beyond 31st March, 2009 for consideration by the next BOO at Depot/Unit/HQ level." (emphasis supplied)
Sri Rai also referred to the subsequent government instruction dated 2nd February, 2010 and relied upon paragraphs 4 and 5 thereof. The said paragraphs are also reproduced as follows :-
4. " In view of the above, a proposal has already been mooted to MOD/D (Lab) to allow this office to conduct the ensuing BOO at the HQ level on the basis of old points system in respect of all the applications which have arleady been considered and recommended by the Local Boards (Pre-Annual Boards) till 31st March, 2009 on the basis of the old points scale system as it would be both logical and fair from the stand point of rationality.
5. It has further been proposed that all subsequent Boards of Officers which are scheduled to be held at Depots/Union/HQ level subsequent to the ensuing BOO should be based on new points scale system to give effect to new point system of compassionate appointment under relaxation of rules for the remaining candidates to be considered after 31st March, 2009 along with fresh applications.
On the other hand, learned counsel for the respondent submitted that when the case of respondent was taken up for consideration under the third chance, by that time the instruction of 1st February, 2010 had already been issued. Learned counsel also submitted that as the case of petitioner should have been considered only in the light of subsequent instruction of 2010, the Tribunal thought it proper not to call for reply while disposing of the matter.
On due consideration of rival submissions, we are of the view that the order of Tribunal does not call for any interference for the reasons that the language of paragraph 6 of the government instruction dated 1st February, 2010 does not appear to be mandatory in nature. It seems to be rather advisory to be used for the purpose of guidance. Moreover, there is no clarification on the question as to which instruction out of 2001 and 2010 would apply if an application is received in terms of three chances concededly provided to the applicants seeking appointments on compassionate ground. Besides, there is nothing on record to suggest that no other similarly situated candidate, like the respondent, was given the benefits under the 2010 instruction. Even in the supplementary affidavit filed in terms of the order dated 19.12.2011 of this Court, there is no whisper about this fact to support the contention of learned counsel for the petitioner Union of India. Besides, the instruction dated 1.2.2010 as referred to in the impugned order, being beneficial in nature would apply in the case of respondent who had applied as third chance to seek the appointment. Moreover the Tribunal has only issued a direction to consider the case of petitioner in the light of the aforesaid instruction of 2010 and there is no substantial ground in favour of the Union of India to require our interference in the writ petition.
Hence, the writ petition, being devoid of merits, is dismissed.
Date of Order:31.7.2012
(Ran Vijai Singh,J.) (Uma Nath Singh,J.)
Amit Mishra/Pratima
