Bombay High Court
Union Of India Through Secretary, ... vs Shri Jagdish S/O Late Shri ... on 16 August, 2016
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4103/2015
PETITIONERS: 1. Union of India, through Secretary,
Ministry of Communication, Department of
Posts, Dak Bhavan, Sansad Marg,
New Delhi - 110001.
2. The Principal Chief Postmaster General,
Maharashtra Circle, Mumbai - 440001.
ig 3. The Senior Superintendent of Post Offices,
Nagpur Moffusil Division, Nagpur - 440002.
...VERSUS...
RESPONDENT : Shri Jagdish s/o Late Shri Balkrishna Surjuse,
aged about 41 years, Occupation : Not Known,
R/o Behind Shani Mandir Chowk, at Post Katol,
Tahsil Katol, District Nagpur, Pin - 441302.
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Shri A.M. Joshi, Advocate for petitioners
Shri A.B. Bambal, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 16.08.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned Counsel for the parties.
By this petition, the petitioners, the Union of India and
others challenge the order of the Central Administrative Tribunal, dated
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24.11.2014, partly allowing the original application filed by the
respondent and directing the petitioners to consider the claim of the
respondent for compassionate appointment on a Group-D post by
considering the O.M. issued by the Government of India on 20.1.2010.
Few facts giving rise to the petition are stated thus : -
The father of the respondent was working as a postman at
Katol Sub-Post Office and he died while in service on 23.2.1997 after
putting in 21 years of service. After the death of the father of the
respondent, the respondent applied for compassionate appointment in
January, 1998. The application of the respondent was not favourably
considered by the duly constituted Committee and the proposal of the
respondent was rejected in August, 2002. However, there was some delay
in conveying the order of rejection to the respondent and the same was
conveyed to the respondent on 1.3.2007. Despite the receipt of the
communication by which the respondent was conveyed about the
rejection, the respondent continued to make representations to the
petitioners for his appointment on compassionate ground, on a Group-D
post. Again, the petitioners, by an order dated 24.3.2009 informed the
respondent that the claim of the respondent cannot be considered as it
was already rejected in August, 2002. The said communication dated
24.3.2009 was challenged by the respondent before the Central
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Administrative Tribunal, without challenging the earlier communications
or decisions dated 13/14th August, 2002, 4.12.2006 and 1.3.2007. The
Tribunal partly allowed the original application filed by the respondent
and directed the petitioners to consider the claim of the respondent on
the basis of the O.M. dated 20.1.2010, that provides for a scheme for
awarding points on various aspects. The order of the Tribunal is
impugned by the petitioners in the instant petition.
The learned Counsel for the petitioners submitted that the
Tribunal was not justified in directing the petitioners to consider the claim
of the respondent on the basis of the O.M. dated 20.1.2010, as the father
of the respondent had expired as early as on 23.2.1997 and the
O.M. dated 20.1.2010 could not have been applied to the case of the
respondent. It is stated that there was an inordinate delay in filing the
original application, inasmuch as, the respondent did not challenge the
first order of rejection that was conveyed to the respondent on 1.3.2007
and challenged only the subsequent order, dated 24.3.2009, that was
merely consequential and which informed the respondent about the
rejection of the proposal in August, 2002. It is stated that the claim of the
respondent was considered by the Committee and the Committee did not
find the case of the respondent to be fit, for granting appointment on
compassionate ground. It is stated that the mother of the respondent had
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received Rs.1,28,668/- towards the retiral dues, that were payable to the
father of the respondent and the mother of the respondent was receiving
a family pension of Rs.7,955/-. It is stated that the respondent's father
had put in 21 years of service and these aspects were rightly looked into
by the Committee while rejecting the claim of the respondent. It is stated
that the Tribunal could not have sat in appeal over the decision of the
Committee and could not have decided the original application in favour
of the respondent and directed the petitioners to consider the O.M. dated
20.1.2010. It is stated that in almost similar set of facts this Court has by
the judgment, dated 9.8.2016 in Writ Petition No.1794/2016, set aside a
similar order passed by the Tribunal. It is stated that this case is even
worse than the case that was decided earlier.
Shri Bambal, the learned Counsel for the respondent
supported the order of the Tribunal and submitted that with the limited
scope in exercise of the writ jurisdiction, this Court may not interfere with
the order. It is stated that since the Tribunal has not considered whether
the respondent's family was indigent or not the matter needs to be
remanded to the Tribunal for a fresh decision on merits. It is, however,
fairly admitted that this Court has already held in the judgment,
dated 9.8.2016 in Writ Petition No.1794/2016 that the O.M. dated
20.1.2010 cannot be applied to old cases and all old cases cannot be
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opened up after the rejection of the claims by merely referring to the
scheme formulated by the O.M. dated 20.1.2010. It is stated that in the
circumstances of the case, the matter may be remanded to the Tribunal.
On hearing the learned Counsel for the parties and on a
perusal of the order of the Tribunal, we find that the order of the Tribunal
is liable to be set aside. The Tribunal has erroneously considered the O.M.
dated 20.1.2010 to direct the petitioners to consider the claim of the
respondent on the basis of the said O.M. While partly allowing the
original application, the Tribunal did not consider the material aspects of
the matter. The father of the respondent had expired on 23.2.1997. The
object of granting compassionate appointment is to grant succour to the
dependents of the family of an employee, who died in harness. The father
of the respondent had expired on 23.2.1997. The claim of the respondent
for compassionate appointment was rejected as early as in August, 2002.
Though the order was belatedly communicated to the respondent on
1.3.2007, the respondent did not challenge the same immediately before
the Tribunal. The respondent continued to make representations to the
petitioners that were ultimately rejected by the order, dated 24.3.2009,
that was challenged before the Tribunal. It is well settled that making of
representations would not stop the period of limitation. It would be
worthwhile to refer to the judgments, reported in 1995 Supp (4) SCC
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593, (1997) 11 SCC 13 and (2009) 3 SCC 281 in this regard. Once the
respondent's application was rejected and the said order was conveyed to
the respondent on 1.3.2007, the respondent ought to have approached
the Tribunal immediately. There was no propriety in making the
representations after 1.3.2007. Also, we find that the object of
compassionate appointment would get frustrated if a direction is issued to
the petitioners to consider appointing the respondent on compassionate
ground, specially when his father had expired in 1997. The object of
compassionate appointment would get frustrated if a Court or authority
directs the employer to appoint a person on compassionate ground,
twenty years after the death of the employee on whom he/she was
dependent. In the circumstances of the case, we find that the Tribunal
could not have directed the petitioners to consider the claim of the
respondent on the basis of the O.M. dated 20.1.2010. If the O.M. dated
20.1.2010 is applied to all old cases in the manner in which the Tribunal
has applied the same, all old cases where the applications are rejected a
decade more earlier would be opened up and the applicants would
approach the Tribunal seeking a direction against the employer to
consider their claims afresh on the basis of the O.M. dated 20.1.2010. In
our view, the O.M. dated 20.1.2010 could not have applied to the case
where the death of the employee occurred in the year 1997 and the
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application for compassionate appointment was made in January, 1998.
The Tribunal failed to consider that compassionate appointment cannot
be claimed as of a right and in the circumstances of the case, a direction
could not have been issued against the petitioners to appoint the
respondent on compassionate ground. The submission, made on behalf of
the respondent that the matter needs to be remanded to the Tribunal for
considering whether the family of the respondent is indigent or not, is
ill-founded and is liable to be rejected. We have already observed herein
above that the object of granting compassionate appointment would stand
frustrated if the claim of a dependent whose parent has expired more
than two decades earlier is considered for appointment on compassionate
ground. Instead of appointing a person like the respondent, it would
always be proper to appoint a woman who is 30 or 35 years of age at the
time of the death of her husband and has young children to rear. We find
that the Committee has rightly considered the comparative merit and has
rejected the claim of the respondent for appointment on compassionate
ground as the mother of the respondent had received a sum of more than
Rs.1,00,000/- towards the retiral benefits and was also receiving a
monthly pension of nearly Rs.8,000/-. Since the Committee is required to
consider the applications received in a particular year for the available
vacancies of that year, we find that the Tribunal committed an error in
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directing the petitioners to consider the application of the respondent on
the basis of O.M. dated 20.1.2010, when his father had expired in 1997.
The impugned order is unsustainable and is liable to be set aside.
Hence, for the reasons aforesaid, the writ petition is
allowed. The order of the Tribunal is hereby quashed and set aside. The
original application filed by the respondent stands dismissed.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
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C E R T I F I C A T E
I certify that this judgment uploaded is a true and correct
copy of original signed judgment.
Uploaded by : S.S. Wadkar, P.S. Uploaded on : 19/08/2016
ig
