Delhi Transport Corporation vs Rahul Nagar
2014 Latest Caselaw 642 Del

$~5
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                            +    W.P.(C) No.5582/2013
                                        Date of Decision: 3rd February, 2014

      DELHI TRANSPORT CORPORATION                                 ..... Petitioner
                            Through     Ms.Avnish Ahlawat, Adv.

                            versus

      RAHUL NAGAR                                              ..... Respondent

                            Through     Mr.Amit Tewari, Adv. & Mr.A. Khalid,
                                        Adv.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

      GITA MITTAL, J (Oral)

1. The writ petitioner assails the order dated 1st April, 2013 passed in

OA No.3488 of 2012 by the Central Administrative Tribunal, Principal

Bench, New Delhi.

2. The facts giving rise to the instant petition are not disputed and to

the extent necessary, are noted hereafter. The respondent is the son of

Late Shri Mahipal Singh who died in harness on 10 th June, 2001 while

working as conductor with the Delhi Transport Corporation (DTC).

3. It appears that Late Shri Mahipal Singh met with an accident on 9th

October, 1998 while returning from duty in which his right leg had to be

amputated. Thereafter, he was assessed as having 60% disability. Based

WP (C) No.5582/2013 page 1 of 8 on this disability, the father of the respondent was retired prematurely on

22nd November, 1999 by the DTC. Late Shri Mahipal Singh challenged

his premature retirement by way of WP No. 2765/2000. Unfortunately,

he expired on 10th June, 2001 during the pendency of the writ petition and

the case was pursued by his son, the present respondent and other legal

heirs of Late Shri Mahipal Singh. This writ petition culminated in a

judgment dated 6th March, 2002 passed by a Division Bench of this court

whereby the termination order dated 22nd November, 1999 was set aside.

It was further declared that the father of the respondent would be

notionally treated to have taken back into service from the date that the

respondents stopped paying full salary to him and he would be treated in

continuous employment without break till he expired on 10th June, 2001.

4. It is noteworthy that the heirs of Late Shri Mahipal Singh filed

contempt petition being CCP No.510 of 2002 complaining violation of

judgment dated 6th March, 2002 by the present petitioner. In this case,

CM No.191/2003 was filed. This petition was disposed of by an order

passed on 21st January, 2004 wherein the court noted that the heirs of

Late Mahipal Singh had not filed an application seeking compassionate

employment with the DTC in view of the fact that Smt.Rajesh Devi

would have got pension. The court observed that it was open to heirs of

Late Mahipal Singh to apply for appointment on compassionate basis and

the DTC was mandated to consider the same in accordance with its

WP (C) No.5582/2013 page 2 of 8 policy, taking into consideration the fact that it was the fault of the DTC

which had resulted in the prolongation of case as it was not earlier

disclosed to them that husband of Smt.Rajesh Devi had opted out of the

pension scheme.

5. It is obvious therefrom that there was no delay in submitting the

application for compassionate employment on the part of Smt.Rajesh

Devi in 2005 as noted by this court in the order dated 24th January, 2004.

6. Smt.Rajesh Devi, mother of the respondent thereafter made request

to the DTC to give her appointment on compassionate ground for any

suitable post keeping in view the dire circumstances of the family. The

DTC failed to respond to the same. Finally, on 24th January, 2011, the

respondent's mother made a request to the DTC to appoint the respondent

who is the eldest son instead of considering her case for such

compassionate appointment. This request was rejected by the DTC by an

order dated 11th February, 2011 wherein they simply stated that the case

was sent to Headquarters for necessary action which came back with the

remark that "your case for employment on compassionate ground is not

possible". This letter was addressed to Smt. Rajesh Devi, widow of Late

Shri Mahipal Singh and mother of the respondent.

7. In view of the non-consideration of the request for appointment

made by Smt.Rajesh Devi, she was constrained to make the

representation dated 24th January, 2011 requesting the compassionate

WP (C) No.5582/2013 page 3 of 8 appointment for the present respondent.

8. The respondent's representation with regard to the DTC's

communication dated 11th February, 2011 was rejected by the petitioner

by their order dated 27th March, 2012 simply stating that the case of the

respondent on compassionate ground "is not possible".

9. The respondent before us assailed the rejection orders dated 11th

February, 2011 and 22nd March, 2012 by way of OA No.3488/2012

before the Central Administrative Tribunal, Principal Bench, New Delhi.

10. The respondent opposed the application largely complaining that

the request of the respondent for compassionate appointment was made

after a lapse of about ten years from the date of death of his father and

that there is a gap of six years from the last application of his mother.

11. Our attention has also been drawn to the counter affidavit filed by

the DTC before the Tribunal. We find that delay was the sole ground on

which the petition of the respondent was opposed.

12. The Tribunal has considered the matter and has passed a detailed

order dated 1st April, 2013 setting aside the orders dated 11th February,

2011 and 22nd March, 2012. The Tribunal has, thereafter, directed the

DTC to re-consider the case of the respondent keeping in view the

observations made in its order.

13. While so directing, the Tribunal has reiterated the well settled

principle that appointment on compassionate basis is an exception to the

WP (C) No.5582/2013 page 4 of 8 rule and meant for immediate relief to the destitute family. The Tribunal

has also noted that the compassionate appointment is not a source of

recruitment and persons entitled for compassionate appointment cannot

be permitted to seek the same on their whims and fancies.

14. The order of the Tribunal records the explanation given by the

present respondent to the extent that the family of Late Shri Mahipal

Singh was in great shock and dismay in view of the accident and illegal

order of termination passed by the DTC. His death on 10th June, 2001

aggravated their misery, financial penury and mental agony.

15. We find by the order dated 6th March, 2002 passed by the High

Court it was held that the termination of the services of Late Shri Mahipal

Singh was illegal and direction were issued to the DTC to make payment

to the family, The heirs of Late Shri Mahipal Singh remained under the

bona fide impression that they would be paid pension by the DTC. As no

pension was received, they were constrained to move this court by way of

Contempt Case No.510 of 2002. It was only in these proceedings that the

DTC opted to inform the court that the family of Late Shri Mahipal Singh

was not entitled to pension. While disposing of CM No.191 of 2003 in

Contempt Case (C) No.513 of 2002, this court recorded on 21 st January,

2004 that it would be open to the legal heirs of Mahipal Singh to apply

for such compassionate appointment which the DTC was required to

consider in terms of policy. The court specifically observed that it was

WP (C) No.5582/2013 page 5 of 8 the fault of the DTC which had resulted in prolongation of case as it was

not disclosed earlier to the legal heirs that he had opted out of the pension

scheme.

16. In the instant case, therefore, no delay is attributable to the

respondent or the other heirs of Late Shri Mahipal Singh in making the

application for appointment on compassionate basis. It is also pertinent

to note that the services of Late Shri Mahipal Singh were illegally

terminated on account of his disability and he died during the pendency

of his challenge before this court. It was only in 2004 when this court

passed the order and permitted his legal heir to approach the DTC by way

of the application for compassionate appointment. Even when she made

the application pursuant to the directions of this court, the DTC kept the

same pending and did not bother to even respond to the same, let alone

consider the same favourably or otherwise. It is undisputed that till date,

the DTC has not taken a view on the merits of the application made by

the respondent's mother.

17. The respondent has disclosed that on the date of death of his father

Late Shri Mahipal Singh, he was minor who attained majority only in the

year 2006. After obtaining his graduation degree as well as the requisite

licences etc., he made representation to the DTC in the year 2011. The

application made by the present respondent is supported by all the other

legal heirs including his mother. On the date when he made the

WP (C) No.5582/2013 page 6 of 8 application, his mother's application for compassionate appointment was

admittedly pending with the DTC.

18. In the given circumstances, the plea for substitution of the

respondent made by heirs of Late Shri Mahipal Singh in the pending

request for compassionate employment, instead of his mother (another

legal heir of Late Mahipal Singh) cannot be considered a delayed one in

any circumstance.

19. It may be noted that merely because the family of the deceased was

able to survive for certain years certainly cannot be unexceptionally

deemed to establish adequancy of means. The adequacy of means is a

question of fact, which must be supported by sound material. The

Tribunal has noted that the DTC has made no effort at all to ascertain the

financial condition of the family of Late Mahipal Singh and has held the

action to be unreasonable, irrational & inhuman.

We find no ground to differ with the view taken by the Tribunal.

20. The present writ petition is, therefore, dismissed as being devoid of

any legal merit.

21. Needless to say, the request of the heirs of Late Shri Mahipal Singh

shall not be rejected on grounds of delay and shall be considered on

merits.

22. It shall be open for the respondent to place any material deemed

necessary before the DTC within two weeks.

WP (C) No.5582/2013 page 7 of 8

23. The petitioner is directed to comply with the directions made by

the Tribunal in para 13 of the order within a period of six weeks

thereafter and communicate the order which is passed to the respondent

upon its passing.

Dasti.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE FEBRUARY 03, 2014 aa

WP (C) No.5582/2013 page 8 of 8