Madras High Court
Union Of India Rep. By vs G. Raghu on 10 March, 2022
W.P. No. 23088 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2022
CORAM
THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
W.P. No. 23088 of 2018
&
W.M.P. No. 26977 of 2018
1. Union of India rep. by
Chief Postmaster General,
Tamil Nadu Circle,
Anna Salai, Chennai – 600 002.
2. The Senior Superintendent,
Railway Mail SERvice (RMS),
Air Mail Sorting Division,
Chennai – 600 016. ..Petitioners
Vs.
1. G. Raghu
2. The Registrar,
Central Administrative Tribunal,
Chennai Bench, High Court,
Madras – 104. ..Respondents
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W.P. No. 23088 of 2021
Prayer: Petition under Article 226 of the Constitution of India praying
for issue of a Writ of Certiorari to call for the records dated 18.11.2016 and
made in O.A. No. 1259 of 2013 on the file of Central Administrative
Tribunal, Chennai Bench and quash the same insofar as it is against the
petitioner.
For Appellant :: Mr.V. Balasubramanian
For Respondents :: Mr.R. Malaichamy
R2- Tribunal
JUDGMENT
S. VAIDYANATHAN,J. AND MOHAMMED SHAFFIQ,J.
The present writ petition has been filed as against the order dated
18.11.2016 in O.A. No. 1259 of 2013. The Department, by way of writ
petition, is challenging the order of the Tribunal in granting the relief of
reinstatement to the 1st respondent/applicant who was divested of his duties
on account of his involvement in the criminal case and thereafter acquitted
by the Criminal Court, as similarly placed persons had been reinstated in
service.
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2. The facts that led to the filing of the writ petition are:
(i) The 1st respondent/applicant before the Tribunal got
appointment on compassionate grounds in the year 1995 on account of his
father's demise on 25.10.1990. While working so, on account of a criminal
case filed, he was deprived of employment with effect from 07.07.2003.
The Judicial Magistrate, Alandur by order dated 12.01.2005, acquitted all
the persons, who were involved in the criminal case including the 1 st
respondent/applicant. One of the acquitted officials, namely, M. Durairajan
was reinstated into service after the orders passed by this Court and when
the said benefit was denied to the 1st respondent/applicant, he filed O.A. No.
339/2013, which was disposed of with a direction to the Department to
consider and pass orders on the representation dated 09.07.2012. However,
the request of the 1st respondent/applicant was rejected, which necessitated
the filing of O.A. No. 1259 of 2013 seeking relief of reinstatement in
service with all other consequential benefits.
(ii) The appellants/respondents before the Tribunal, in their reply
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W.P. No. 23088 of 2021
statement, stated that the 1st respondent/applicant was engaged as daily
wages mazdoor and based on the guidelines issued by the DoPT vide OM.
No. 42012/4/2000-Estt(D) dated 24.11.2000, the waiting list for
appointment on compassionate grounds was restricted to 5% under direct
recruitment for Group C and D posts and the waiting list beyond the 5%
limit was discontinued. Since the wait list was discotinued, Postal
Directorate by letter dated 25.07.2001, directed to consider such wait listed
candidates for the vacant posts of Gramin Daak Sevak, if they were willing
and eligible. Since the 1st respondent/applicant expressed his unwillingness,
his name was removed from the waiting list for compassionate appointment
in the year 2002 itself. Further, according to the Department, the 1st
respondent/applicant and Durairajan were not similarly placed as Durairajan
was a Temporary Status Casual Labourer, who came under the guidelines of
Casual Labourers (Grant of Temporary Status and Regularisation) Scheme.
Besides, the 1st respondent/applicant was engaged as Mazdoor only with
effect from 13.06.1997 i.e, after the cut-off date namely, 29.11.1989 for
grant of Temporary Status Casual Labourers and hence, that right of the
applicant also ceased, thereby depriving him of the benefit of the judgment
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W.P. No. 23088 of 2021
of Madras High Court in W.P. No. 12974/2009 by which said Durairajan
was granted the relief of reinstatement.
(iii) The Tribunal, after hearing the rival submissions, came to the
conclusion that the 1st respondent/applicant is also similarly placed as that
of Durairajan and as per the directions of this Court in W.P. No. 16041 of
2014 to regularise the services of the respondents in the said case, who had
been discontinued from the list of approved candidates for compassionate
appointment, the 1st respondent/applicant is also entitled for regularisation.
Accordingly, a direction was issued to the Department to consider the case
of the 1st respondent/applicant on the same lines as in W.P. No. 16041 of
2014 and issue orders within a period of three months.
Challenging the same, the Department has preferred this writ petition.
3. Learned counsel for the appellants would contend that since the
procedure of maintaining waiting list of approved candidates for
compassionate appointment beyond 5% limit was dispensed with, vide
proceedings of the Department dated 24.11.2000, such waitlisted
candidates were directed to be considered for vacant posts of Gramin Dak
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W.P. No. 23088 of 2021
Sevak if they were willing and eligible. However, the 1st respondent
expressed his unwillingness vide letter dated 11.12.2002 to accept the post
of Gramin Dak Sevak and therefore, the 1st respondent's right to claim
appointment on compassionate grounds ceased in the year 2002 itself.
Further, the learned counsel would contend that the 1st respondent was
acquitted in the criminal case by giving the benefit of doubt and it was not
an honourable acquittal. It is also submitted by the learned counsel for the
appellants that the 1st respondent was not engaged against any sanctioned
post and was disengaged from the Department with effect from 07.07.2003.
He is not similarly placed as that of the respondents in W.P. No. 16041 of
2014 and therefore, he is not entitled to the benefit of regularisation in terms
of the said judgment. Besides, the 1st respondent has been able to survive
without this job for nearly 14 years, which implies that he has other source
of subsistence. Therefore, the order of the Tribunal, which is against the
concept of compassionate appointment requires to be set aside.
4. On the other hand, it is submitted by the learned counsel for the
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W.P. No. 23088 of 2021
1st respondent/applicant, when Durairajan, who was also involved in the
criminal case and acquitted thereafter, like the 1st respondent, has been
reinstated in service, the Department cannot adopt a different yardstick and
grant reinstatement to one employee and deprive another on the ground
quoting the proceedings dated 24.11.2000. It has been brought to the
attention of this Court by the learned counsel for the 1st
respondent/applicant that though it is stated that the 1st respondent had not
accepted the offer of GDS post, the Directorate of Postal Department, vide
letter dated 04.05.2006, had informed the 1st respondent that it is not
feasible to offer GDS post on compassionate grounds to the dependants of
regular Government Employees, who died in harness or retired on
invalidation.
5. Heard the learned counsel for the parties.
6. The only issue to be decided in the writ petition is whether the
Tribunal was correct in granting the relief of reinstatement to the 1 st
respondent on par with other employees. The factum of appointment on
compassionate grounds that was granted in 1995 and thereafter, the 1st
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W.P. No. 23088 of 2021
respondent/applicant was deprived of employment with effect from
07.07.2003 is not in dispute. The 1st respondent and others were involved in
a criminal case and after acquittal, other persons similarly placed have been
reinstated in service, of course, pursuant to the orders of this Court and it
has also been confirmed by the Hon'ble Supreme Court. In terms of
instruction of the Department dated 04.05.2006, the offer of appointment as
GDS made to the 1st respondent has been withdrawn by the Department.
When a person is involved in a criminal case, even after reinstatement, it
will not be a bar for the Department to proceed against the employee
departmentally. But, they cannot take recourse to the proceedings of the
Department dated 24.11.2000 stating that there is a restriction with regard to
the appointment on compassionate grounds. Even assuming that is so, it will
be applicable only to new cases and not to those employees, who have
already been considered for appointment on compassionate grounds and
subsequently, deprived of employment upon misconduct/involvement in a
criminal case. Until the order is set aside, there would be break in service of
employee concerned. In the present case on hand, different yardstick cannot
be applied to the 1st respondent/applicant when he is similarly placed like
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W.P. No. 23088 of 2021
that of Durairajan.The 1st respondent has been deprived of employment as
early as on 07.07.2003 and almost two decades have gone by. Though in the
original application, it is mentioned that the 1st respondent is 55 years old, in
the counter filed in the writ petition, it has been stated that he is 51 years of
age. We are not going into the correctness or otherwise of his age in the
present writ petition. Depending upon the certificates that were produced
before the authorities concerned at the time of entering into employment,
the date of birth of the 1st respondent may be considered for continuation of
his employment as we are of the view that the Tribunal has rightly granted
the relief to the 1st respondent and that he shall be treated on par with
Durairajan, who had the benefit of the order of this Court in W.P. No. 12974
of 2009 as confirmed by the Apex Court.
7. Since time granted by the Tribunal has already expired, we are
inclined to grant four months time from the date of receipt of a copy of this
order to comply with the order passed by the Tribunal. However, taking
note of the pendency of the matter before the Tribunal and this Court,we are
inclined to reduce the backwages by 50%. It is made clear that the entire
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W.P. No. 23088 of 2021
S. VAIDYANATHAN,J.
AND
MOHAMMED SHAFFIQ,J.
nv
period of service of 1st respondent shall be taken into account as one of
continuous service for the purpose of monetary and terminal benefits. The
writ petition is disposed of accordingly. No costs. Connected W.M.P. is
closed.
(S.V.N.J.) (M.S.Q.J.)
nv 10.03.2022
To
1. The Chief Postmaster General,
Tamil Nadu Circle,
Anna Salai, Chennai – 600 002.
2. The Senior Superintendent,
Railway Mail SERvice (RMS),
Air Mail Sorting Division,
Chennai – 600 016.
W.P. No. 23088 of 2018
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