Kerala High Court
Union Of India vs Union Of India on 16 February, 2021
O.P.(CAT) No.194/2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
OP (CAT).NO.194 OF 2018
AGAINST THE JUDGMENT IN O.A. NO.912/2016 DATED 21-02-2018 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN O.A.:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
INDIA, MINISTRY OF COMMUNICATIONS AND INFORMATION
TECHNOLOGY, DEPARTMENT OF POSTS, DAK BHAVAN,
SANSAD MARG, NEW DELHI 110 001.
2 THE CHIEF POST MASTER GENERAL,
KERALA CIRCLE, THIRUVANANTHAPURAM - 695033.
3 THE SENIOR SUPERINTENDENT OF POST OFFICES,
THRISSUR POSTAL DIVISION, THRISSUR - 680001.
BY SRI.T.V.VINU, CGC
RESPONDENT/APPLICANT IN O.A.:
DEEPU C.J.,
S/O. M.D.JOSE (LATE), CHIRAYATH MANJILA HOUSE,
PUTHENPEEDIKA PO, THRISSUR DISTRICT 680 642.
BY ADV. SRI.T.C.GOVINDA SWAMY
BY ADV. SMT.KALA T.GOPI
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-02-2021, THE
COURT ON 16-02-2021 DELIVERED THE FOLLOWING:
O.P.(CAT) No.194/2018 2
(C.R.)
ALEXANDER THOMAS & T.R.RAVI, JJ.
--------------------------------------------------------------------------------
O. P. (CAT) No. 194 of 2018
[Arising out of the impugned final order dated 21.2.2018 in
O.A. No. 912 of 2016 on the file of the CAT, Ernakulam Bench]
---------------------------------------------------------------------------------
Dated this the 16th day of February, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in the afore captioned Original Petition
filed under Articles 226 & 227 of the Constitution of India are as
follows: {See pages 6 & 7 of the paper book of this OP(CAT)}
"...........set aside Exhibit-P3 Order in OA No.180/00912/2016 dated
21.02.2018, of the Central Administrative Tribunal, Ernakulam Bench, in the
interest of justice."
2. Heard Sri.T.V.Vinu, learned Central Government Counsel
appearing for the petitioners in the O.P./respondents in the O.A. (The
Union of India, The Chief Post Master General (Kerala Circle) and
another) and Sri.T.C.Govinda Swamy, learned counsel appearing for
sole respondent in the O.P./sole applicant in the O.A. before the
Tribunal.
3. The prayers in Ext.P-1 O.A. No. 912/2016 filed by the
respondent herein (original applicant) before the Central Administrative
Tribunal, Ernakulam Bench, are as follows: {See page 18 of the paper book of
this OP(CAT)}
"
i. Call for the records leading to the issue of A1 and quash the same;
ii. Declare that the applicant is eligible to be considered for an
appointment on compassionate grounds irrespective of the reasons
stated in A1 and direct the respondents accordingly;
iii. Direct the respondents to consider the applicant for an appointment
on compassionate grounds under the respondents ignoring the
reasons stated in A1 and direct further to grant an appointment
within a time frame as may be found just and proper by this Hon'ble
tribunal with all consequential benefits thereof;
iv. Award costs of and incidental to this application;
v. Pass such other orders or directions as deemed just fit and necessary
in the facts and circumstances of the case."
4. The applicant's father was an employee of the postal
department of the Union Government and he had died on 27.8.2010 while
he was in service. The applicant's father was otherwise to retire from
service consequent to superannuation with effect from 31.3.2011. It
appears that the original applicant had submitted the requisite application
seeking claim for compassionate appointment on account of the death of
his father, and on the ground that his family is in a penurious and indigent
situation, and compassionate appointment is highly necessary to enable the
family of the deceased employee to tide over the great financial crisis which
is looming large before them. Anx. A7(a) is the mark list dated 6.9.2011
issued by the competent authority of the Board of Examination of the
General Education Department of the Government of Kerala, which would
show that the applicant had passed in all the subjects in the SSLC
Examination other than General Science (See page 32 of the paper book of
this OP(CAT)}. A reading of Anx.A-7(a) would disclose that the applicant
had failed to secure the minimum pass mark of 30 marks in general science
as he had secured only 24 marks and hence he was declared as failed in the
said examination. Further it appears that the applicant had written the
supplementary examination thereafter and had passed in the said failed
subject, viz, general science, by securing 49 marks out of 100. Anx.A-7 is
the mark list dated 3.12.2012 issued by the competent authority of the
Board of Examination of the General Education Department of the
Government of Kerala, which would certify that the applicant has passed
the SSLC Examination in the second chance {See page 31 of the paper book
of this OP(CAT)}. Further, as per the norms the issue as to whether the
eligibility conditions are fulfilled is determined as on the date of
application, and hence it appears that the authorities concerned had
adjudged that the applicant is not having minimum qualification of SSLC
and therefore is not eligible to be considered for appointment in
compassionate quota. Yet another ground of rejection was also made to the
effect that the applicant is not in indigent situation so as to warrant his case
to be considered for compassionate appointment. The abovesaid decision
that the applicant was not having the minimum qualification to be
considered for compassionate appointment and that he is not in indigent
situation etc has been rendered by the competent authority of the postal
department in the meeting held on 30.9.2013 and 1.10.2013. It is also
common ground that in the said selection conducted on 30.9.2013 and
1.10.2013, the successful candidates were given RMP points (Relative Merit
Position points) as per the norms within the range of 44 to 39.
5. Being aggrieved by the rejection of the applicant's case,
he was constrained to approach the Central Administrative
Tribunal, Ernakulam Bench, by filing O.A.No.785/2014 which ultimately
culminated in Anx.A-3 final order dated 4.2.2016 rendered by the CAT,
Ernakulam Bench, in the said O.A. No. 785/2014. In Anx.A3 final order
rendered by the Tribunal, the Tribunal after hearing both sides and after
meticulous consideration of the pleadings and materials on record found
that the grounds of rejection are unsustainable and further that the stand
of the respondent authorities therein that the applicant was not having the
minimum qualification to be considered for compassionate appointment is
also legally wrong inasmuch as, the norms as per Anxs.A-8 & A-9 therein
would also conceive of relaxation of minimum qualifications to the
candidates concerned, so that they could be subjected to initial training
and then absorb them after securing the minimum qualifications. In that
view of the matter the Tribunal found that the rejection of the case of the
applicant by the authorities concerned on account of the decision rendered
by them in the meeting held on 30.9.2013 and 1.10.2013 is illegal and
unreasonable. Accordingly, the Tribunal has quashed the rejection order
and has passed the following directions in para 7 of Anx.A-3 final order,
which reads as follows: {See page 26 of the paper book of this OP(CAT)}
"7. In the above circumstances and since the impugned decision of the
respondents is not in tune with Annexure A/6 & A/7 scheme this Tribunal is of the
view that the request of the applicant needs to be reconsidered by the respondent
authorities afresh. Accordingly Annexure A/1 is quashed and set aside. The
competent authority of the respondents shall reconsider the request of the
applicant for appointment on compassionate grounds strictly in accordance with
the extant scheme as notified by Government of India from time to time and a
decision shall be taken. It is worth reminding the respondents that as per the latest
compilation of the scheme on compassionate appointment issued by the DoPT
there is no time limit for considering the request for appointment and it can be
considered repeatedly provided the applicant fulfills the other criteria stipulated
in the scheme. OA is disposed of as above. Parties shall suffer their costs."
6. Thereafter it appears that since the authorities concerned had
in limine rejected the application of the applicant consequent to the
decision taken by them in the meeting held on 30.9.2013 and 1.10.2013, no
RMP points were awarded to the applicant on the ground that he has not
even qualified to be considered for compassionate appointment. After the
rendering of Anx.A-3 final order, the respondents therein had decided to
comply with said directions and the competent authority/committee in in
the meeting held on 23.6.2016 considered the case of the applicant and
awarded RMP points to him as 46 points. In the said meeting held on
23.6.2016 the competent committee had awarded RMP points to successful
candidates which is in the range of 48 to 81 points. Thereafter, the
competent authorities concerned have issued impugned Anx.A-1 rejection
order dated 25.7.2016 ordering that the case of the applicant for
compassionate appointment stands again rejected on the ground that the
last selected candidate in the meeting held on 23.6.2016 had secured 48
RMP points, and that since the applicant had secured only 46 RMP points,
he could not be selected. Further it is also stated in Anx.A-1 rejection order
dated 25.7.2016 that the applicant is not in a relatively penurious situation
etc, presumably this is on account of the fact that the other successful
candidates had secured RMP points in the range of 48 to 81 and that since
the applicant had secured only 46 points, he cannot be said to be as
penurious as the successful candidates who secured RMP points in the
range of 48 to 81. It appears that the last candidate selected in the meeting
held on 23.6.2016 had secured 48 points as per the RMP norms. It is this
order at Anx.A-1 that is under challenge before the Tribunal as per Ext.P-1
O.A. No. 912/2016.
7. The Tribunal after hearing both sides has rendered the
impugned Ext.P-3 final order dated 21.2.2018 in O.A. No. 912/2016
holding that the respondents therein had committed grave illegality in
again rejecting the case of the applicant. The main ground cited by the
Tribunal in Ext.P-3 final order is that, there is already an inter partes
judgment between the very same parties as per Anx.A-3 final order dated
4.2.2016 rendered by the CAT, Ernakulam Bench in O.A. No. 785/2014
filed by the very same applicant on the very same issue in the previous
round of litigation. The Tribunal has found as per the impugned Ext.P-3
order that in view of the quashment and remit of the matter as per Anx.A-3
order of the Tribunal in the previous round, the case of the applicant
should have been reconsidered along with the other candidates who were
considered in the selection meeting held on 30.9.2013 and 1.10.2013, since
the rejection order that was quashed as per Anx.A-3 order was on account
of the decision rendered by the competent committee in the selection
meeting held on 30.9.2013 and 1.10.2013.
8. It is common ground that in the selection meeting held on
30.9.2013 and 1.10.2013 which is the subject matter of the rejection order
quahsed in Anx.A-3 order, the successful candidates had secured RMP
points in the range of 39 to 44 points. Whereas, the Tribunal found that the
case of the applicant should have been reconsidered along with the RMP
position of candidates considered and selected in the selection meeting
held on 30.9.2013 and 1.10.2013, and that the act of authorities concerned
in considering the RMP points of the applicant along with the fresh
candidates who were considered in the subsequent selection meeting held
on 23.6.2016 wherein the successful candidates had secured the RMP
points in the range of 48 to 81 points, was highly illegal and improper. It is
on this main ground that the Tribunal has rendered the impugned Ext.P-3
final order again quashing the impugned rejection order as per Anx.A-1 and
directing the authorities concerned to reconsider the case of the petitioner
by considering his RMP point vis-a-vis the candidates who were considered
in the selection meeting held on 30.9.2013 and 1.10.2013, which is the
subject matter of the rejection order which is quashed by the Tribunal in
the previous round of litigation as per Anx.A-3 order. It is this order at
Ext.P-3 that is under challenge before this Court in this Original Petition
filed by the Union of India and the postal department authorities by resort
to the provisions contained in Articles 226 and 227 of the Constitution of
India.
9. We have heard both sides and given our anxious consideration
to rival pleas. The case of the applicant was rejected in the previous round
which resulted in Anx.A-3 final order of the Tribunal. At that time, two
grounds of rejection were cited. The first ground was that the applicant
was not in a penurious condition. The second ground was that the the
applicant has not secured the minimum qualification of pass in SSLC
examination, and therefore he is not qualified for appointment in the
compassionate quota. Both these grounds were held by the Tribunal based
on irrelevant considerations and not after reckoning all the relevant
parameters. The Tribunal as per para 7 of Anx. A-3 order had quashed the
impugned rejection order therein and had remitted the matter to the
authorities concerned for reconsideration of the case of the applicant. Of
course, a reading of para 7 of Anx. A-3 order would indicate that the word
'afresh' has also been used by the Tribunal therein inasmuch as, the
direction is that the case of the applicant should be reconsidered by the
respondent authorities therein afresh.
10. After hearing the submissions made on behalf of the petitioners
it appears that, the petitioners have misconstrued the term 'afresh'
appearing in para 7 of Anx. A-3 order to the effect that the applicant's case
should be considered as a fresh case along with fresh candidates who had
applied later whose case was considered in the subsequent selection
meeting held on 23.6.2016. This was a serious fault made by the
authorities concerned. The well considered verdict of the Tribunal at
Anx.A-3 is to the effect that the rejection order of the Tribunal at that point
of time was illegal and based on irrelevant considerations, and therefore
the matter was quashed and remitted to enable the reconsideration of the
case of the applicant. Therefore the applicant should have been restituted
by reconsidering his case by putting his position back to the consideration
which was made in the selection meeting held on 30.9.2013 and 1.10.2013,
and not vis-a-vis the fresh candidates whose case were considered later in
the selection meeting held on 23.6.2016.
11. After hearing both sides we are apprised that since in the
previous round the case of the applicant was rejected on the ground that he
has not secured the minimum qualification of pass in SSLC, the respondent
authorities have not even awarded the relative RMP point to the applicant.
Therefore, the quashment and remit made by the Tribunal as per Anx.A-3
necessitated the reconsideration of the case of the applicant by awarding
him RMP points in accordance with norms. Awarding of RMP points as per
the norms is an objective action to be duly done by the authorities
concerned. After considering all the relevant parameters the competent
committee/competent authorities have found that the applicant is entitled
to secure 46 RMP points. Thereafter, the authorities concerned were legally
obliged to reconsider the case of the applicant along with candidates who
were considered in the selection meeting held on 30.9.2013 and 1.10.2013,
as what is to be done is restitution of the case of the applicant consequent
to the quashment and remit by the Tribunal as per Ext.P-3.
12. From the admitted facts it appears that the successful
candidates who were considered in the selection meeting held on
30.9.2013 and 1.10.2013 had secured RMP points in the range of 39 to 44
points. Whereas, admittedly the applicant is entitled to secure 46 RMP
points. Hence, the applicant should have been adjudged as a candidate
who is eligible and penurious enough to be considered for appointment in
compassionate quota along with the successful candidates who were
considered in the selection meeting held on 30.9.2013 and 1.10.2013.
As indicated herein above, the act of the authorities in comparing his RMP
vis-a-vis fresh candidates who were considered in the subsequent selection
meeting held on 23.6.2016, was a serious legal fault. Hence, the Tribunal is
fully right in giving the reasonings and arriving at the impugned
conclusions as per Ext.P-3 order to reconsider the case of the petitioner
along with the successful candidates who were considered in the selection
meeting held on 30.9.2013 and 1.10.2013, and by treating the applicant
has secured RMP of 46 points. After hearing both sides we are of the firm
view that no grounds have been made out by the petitioners so as to
warrant interdiction by resort to the extraordinary discretionary and
constitutional powers conferred under Articles 226 and 227 of the
Constitution of India.
13. However, Sri.T.V.Vinu, learned Central Government Counsel
appearing for the petitioners would point out that there was a direction in
the impugned Ext.P-3 final order rendered by the Tribunal that, if
necessary, a supernumerary post may also be created for accommodating
the applicant, etc
14. A reading of para 13 of Ext.P-3 final order would make it clear
that all what the Tribunal has ordered is that the case of the applicant
should be reconsidered as afore stated vis-a-vis the previous selection done
as per the meeting held on 30.9.2013 and 1.10.2013, and that the mere fact
that all the post under 5% compassionate quota would have been filled up
by now, shall not be a legal obstacle to his appointment and posting of the
applicant if he is found entitled, and that the respondents in the O.A.
either among future vacancies or they create a supernumerary post, etc.
15. We make it clear that there is no mandatory direction issued by
the Tribunal that a supernumerary post should be created at any cost so as
to accommodate the applicant. After complying with the directions in the
Tribunal at Ext.P-3 and if it is found that the applicant is entitled for
appointment under the compassionate quota, then it is for the authorities
concerned to accommodate the applicant either in existing vacancies or in
any future vacancy, and the creation of supernumerary post would arise
only if future vacancies may not arise in the immediate foreseeable future
and not in any other contingency.
16. Further, it appears that the impugned Ext.P-3 final order has
been rendered by the Tribunal as early as on 21.2.2018 and the present
OP(CAT) has been filed by the petitioners herein before this Court on
23.10.2018. In view of the abovesaid aspects it is ordered that the
petitioners herein will immediately comply with the directions and orders
passed by the Tribunal as stated herein above without any further delay at
any rate within an outer time limit of 2 months from the date of production
of a certified copy of this judgment. We modify and clarify the directions
and orders of the Tribunal at Ext.P-3 to the abovesaid limited aspect.
17. In that regard it is also relevant to note that, though it appears
that the original applicant had not possessed the minimum qualification of
pass in SSLC at the time of submission of application, later he has secured
the said minimum qualification as can be seen from Anx.A-7 dated
3.12.2012 and so the applicant appears to have secured the minimum
qualification at the time of consideration of his pleas in the selection
meeting held on 30.9.2013 and 1.10.2013.
With these observations and directions, the above Original
Petition (CAT) will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
MMG
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00912/2016
DATED 31.10.2016 FILED BY THE RESPONDENT
BEFORE THE CAT, ERNAKULAM BENCH.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
29.12.2016 FILED BY THE PETITIONERS.
EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.
180/01103/2014 DATED 04.08.2015 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH.
ANNEXURE A1 TRUE COPY OF LETTER BEARING NO.RECTT/7-
8/DEPTL/2012 DATED 25.7.2016 ISSUED BY THE
2ND RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE LETTER BEARING
NO.B2/17/RECTT/07/2010 DATED 7.2.2014,
ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE ORDER IN O.A.785/14 DATED
4.2.2016, RENDERED BY THE CAT, ERNAKULAM
BENCH.
ANNEXURE A4 TRUE COPY OF THE LAND VALUE CERTIFICATE
BEARING NO.K.DIS.30845/2012/A8 DATED
10.7.2012, ISSUE DBY THE TAHSILDAR,
THRISSUR.
ANNEXURE A5 TRUE COPY OF THE VALUATION CERTIFICATE
BEARING NO.AB2-1620/2010 DATED 31.12.2010,
ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER
OF THE PWD BUILDINGS SUB DIVISION,
THRISSUR.
ANNEXURE A6 TRUE COPY FO THE LETTER NO.RECTT/7-
8/DEPTL/2012 DATED 24.7.2012 ISSUED BY THE
ASST. DIRECTOR (RECTT).
ANNEXURE A7 TRUE COPY OF THE CERTIFICATE BEARING NO.EB-
26626 ISSUED BY THE GOVERNMENT OF KERALA,
GENERAL EDUCATION DEPARTMENT ST. X
EQUIVALENCY CERTIFICATE.
ANNEXURE A7(A) TRUE COPY OF CERTIFICATE BEARING NO.EE-
24823 ISSUED BY THE GOVERNMENT OF KERALA,
GENERAL EDUCATION DEPARTMENT ST.X
EQUIVALENCY CERTIFICATE.
ANNEXURE A8 TRUE COPY OF THE DEPARMENT OF PERSONNEL &
TRAINING OM NO.14014/6/94-ESTT(D) DATED
9.10.1998.
ANNEXURE A9 TRUE COPY OF THE ORDER BEARING
F.NO.14014/2/2009/ESTT(D) DATED 11.12.2009,
ISSUED BY THE GOVERNMENT OF INDIA
DEPARTMENT OF PERSONNEL & TRAINING.
ANNEXURE A10 TRUE COPY OF DEPARTMENT OF PERSONNEL &
TRAINING MEMORANDUM BEARING
F.NO.14014/2/2009 ESTT (D) DATED 3.4.2012.
ANNEXURE R1 TRUE COPY OF THE EXTRACT FROM THE SCHOOL
ADMISSION REGISTER-ST. ANTONEY'S H.S.
PUTHENPEEDIKA.
ANNEXURE R2 TRUE COPY OF THE JUDGMENT OF OA 220/2013
DATED 11.4.2014 BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
ANNEXURE R3 THE REPRESENTATION OF THE APPLICANT DATED
25.5.2012 TO THE SENIOR SUPERINTENDENT OF
POST OFFICE, TRICHUR DIVISION.
ANNEXURE R3(A) THE ENGLISH VERSION OF THE REPRESENTATION
OF THE APPLICANT DATED 25.5.2012 TO THE
SENIOR SUPERINTENDENT OF POST OFIFCE,
TRICHUR DIVISION.
ANNEXURE R4 TRUE COPY OF DIRECTORATE LETTER
NO.37/33/2009-SPB-I DATED 12.12.2010
(NOTIFICATION) BY THE MINISTRY OF
COMMUNICATIONS AND INFORMATION TECHNOLOGY
(DEPARTMENT OF POSTS).
ANNEXURE R4(A) TRUE COPY OF THE AMENDMENT (NOTIFICATION)
DATED 28.6.2012 BY THE DIRECTOR, DEPARTMENT
OF POSTS.
ANNEXURE R5 TRUE COPY OF THE ORDER OF THE HON'BLE
TRIBUNAL IN OA 60/2010 DATED 14.7.2011 BY
THE CAT, ERNAKULAM BENCH.
