WPSB/122/2016
2022 Latest Caselaw 3197 UK

    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL
          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
                HON'BLE SRI JUSTICE R.C. KHULBE

                      28TH SEPTEMBER, 2022

         WRIT PETITON (S/B) No. 104 OF 2016

Between:
Union of India and others.            ..........Petitioners
and
Central Administrative Tribunal, Allahabad Bench at
Allahabad and another.                ...Respondents

& WRIT PETITON (S/B) No. 122 OF 2016

Between:

Union of India and others. ..........Petitioners and Central Administrative Tribunal, Allahabad Bench at Allahabad and another. ...Respondents

Counsel for the petitioners : Mr. Virendra Kumar Kaparuwan, learned Standing Counsel for the Union of India.

Counsel for the respondent No. 2 : Mr. Shakti Singh.

Upon hearing the learned Counsel, the Court made the following

COMMON JUDGMENT : (per Sri Vipin Sanghi, C.J.)

The present petitions have been preferred by

the Union of India assailing the common order dated

28.04.2015 passed by the Central Administrative

Tribunal, Allahabad Bench, Allahabad in Original

Application Nos. 461 of 2012 & 454 of 2012 preferred by

respondent No.2-Jeewanti @ Jiwa Devi, wife of late Shri

Gopal Dutt Tiwari.

2. The Tribunal has allowed the said Original

Applications filed by her, and directed the petitioners to

treat her at par with Smt. Chandra Devi Bhatt and grant

her family pension as well as compassionate

appointment to her son-Lalit Mohan Tiwari, if he fulfills

all the eligibility criteria as per law. The petitioners were

also directed to pay interest @ 8% on the delayed

payment of family pension from the date of the

entitlement till the date of actual payment within three

months from the date of receipt of the certified copy of

the order.

3. The impugned order has not been complied

with by the petitioners during the pendency of these

petitions, which have been pending since the year 2016.

4. The husband of respondent No. 2-Gopal Dutt

Tiwari was initially appointed as a Chaukidar on

05.05.1985 by the Sub-Divisional Inspector, Nainital.

He joined in that capacity on 01.08.1985 in Sub Post

Office, Garampani as casual labour i.e. casual postal

employee. Upon completion of three years' continuous

service, he was treated at par with temporary Group 'D'

employees, and was entitled to the benefits admissible

to Group 'D' employees. Thereafter, he was treated at

par with Group 'D' employees from 29.11.1992, even for

payment of his salary. Since then, he was placed in the

regular pay-scale of Group 'D' employees and was given

all the benefits of revised pay-scale from time to time of

Group 'D' employees, and drew his salary till July, 2004.

He unfortunately passed away while in harness, on

21.08.2004.

5. Upon the demise of her husband, respondent

No.2 sought family pension and compassionate

appointment for her son. These reliefs were denied to

her by the petitioners on the ground that late Shri Gopal

Dutt Tiwari was not regularized in his service, and since

he was not a regular employee, his successors were not

entitled to family pension or even to claim

compassionate appointment. Since the claim of

respondent No. 2 was rejected by the petitioners, she

preferred the Original Applications, in which the

impugned order has been passed. Prior to preferring the

said Original Applications, she had filed another Original

Application being O.A. No. 1499 of 2011, which was

disposed of with a direction to the petitioners to decide

her representation. As that representation was rejected

on 01.02.2012, the same was assailed in the Original

Applications in question, i.e. O.A. Nos. 461 of 2012 &

454 of 2012.

6. Before the CAT, Respondent No. 2 cited the

case of another similarly situated person to submit that

in that case the petitioners herein had complied with the

order passed by the Tribunal on 21.07.2000. That was

the case of Smt. Chandra Devi Bhatt vs. Union of

India and others. In that case as well, late husband of

Chandra Devi Bhatt had joined the same Department, in

the same capacity. Her husband had rendered sixteen

years of service before dying in harness. Since she, too,

was denied family pension and compassionate

appointment, she preferred the aforesaid Original

Application, which was allowed by the Tribunal on

21.07.2000. The petitioners herein accepted the order

passed in the case of Chandra Devi Bhatt, and

complied with the same and did not challenge the said

order before this Court.

7. The Tribunal, therefore, found that the

petitioners were seeking to discriminate against

respondent No. 2 vis-à-vis the case of Chandra Devi

Bhatt. In the case of respondent No. 2, her husband

had rendered more than 19 years of continuous service,

as compared to the late husband of Chandra Devi Bhatt,

who had rendered 16 years of continuous service.

8. It is in the aforesaid light that the impugned

order was passed by the Tribunal.

9. The submission of the learned counsel for the

petitioners is that late Shri Gopal Dutt Tiwari was not a

regular employee and, therefore, respondent No. 2 was

not entitled to family pension, or to seek compassionate

appointment for her son. He places reliance on the

Central Civil Services (Pension) Rules (for short, 'CCS

(Pension) Rules') and, in particular, on Rule 2 thereof,

relevant extract of which is placed on record. The same

reads as follows:-

"2. Application Save as otherwise provided in these rules, [these rules shall apply to Government servants appointed on or before the 31st day of December, 2003] including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to--

(a) railway servants;

(b) persons in casual and daily-rated employment;

(c) persons paid from contingencies;

(d) persons entitled to the benefit of a Contributory Provident Fund;

(e) members of the All India Services;

(f) persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries;

(g) persons employed on contract except when the contract provides otherwise; and

(h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force."

10. He particularly places reliance on Clause (b) to

say that the pension / family pension cannot be granted

to 'persons in casual and daily-rated employment'.

11. We have heard learned counsel for the parties.

12. Firstly, we may observe that there is no

answer to the charge of discrimination against the

petitioners. Admittedly, the petitioners have accepted

the order passed by the Tribunal in the case of Chandra

Devi Bhatt and complied with the order passed by the

Tribunal. The petitioners cannot seek to discriminate

between two employees. If the understanding of the

petitioners was that the family of the deceased

employee, who was serving as a temporary Group 'D'

employee, is not entitled to family pension or

compassionate appointment, then the petitioners should

have challenged the order passed by the Tribunal in the

case of Chandra Devi Bhatt. However, that is not

done. Thus, they have accepted the principle that in

such like cases, family pension and compassionate

appointment could be granted.

12. Having accepted the decision of the Tribunal in

the case of Chandra Devi Bhatt, the petitioners cannot

choose to assail the same in the case of respondent No.

2. Moreover, a perusal of Rule 2 of the CCS (Pension)

Rules shows that the case of respondent No. 2 or her

late husband was not covered by any of the exclusionary

clauses (a) to (h) of the said Rule. Reliance placed on

clause (b) is misplaced, since it cannot be said that the

late husband of respondent No. 2-Shri Gopal Dutt Tiwari

was serving in casual or daily-rated employment. He

had been granted temporary status and was drawing

salary in a regular pay-scale.

13. We are, therefore, of the view that respondent

No. 2 was entitled to the relief of family pension as

granted by the Tribunal. However, we find that the

direction issued by the Tribunal to grant compassionate

appointment to the son of respondent No. 2-Lalit Mohan

Tiwari cannot be sustained. Gopal Dutt Tiwari had died

on 21.08.2004. Compassionate appointment is granted

to mitigate immediate financial crisis, into which the

family of the government servant is plunged due to his /

her untimely demise. It is not a regular source of

recruitment.

14. Since the demise of Gopal Dutt Tiwari, about

11 years had elapsed when the CAT decided the O.A.s.

At that late stage, to direct to grant compassionate

appointment to Mr. Lalit Mohan Tiwari-the son of

respondent No. 2 (who is now stated to be about 39

years and doing a private job), was not in order. We,

therefore, modify the relief granted by the Tribunal. The

direction to grant compassionate appointment to Mr.

Lalit Mohan Tiwari is, therefore, set aside. Since

compassionate appointment was not considered when it

should have been considered on merits, we, instead,

direct the petitioners to pay damages to respondent No.

2 quantified at Rs. 50,000/- (Rs. Fifty Thousand Only).

In all other respects, the impugned order is maintained.

The petitioners are directed to comply with the same, as

well as the order passed by this Court, within the next

six weeks.

15. The petitions stand disposed of accordingly.

16. In sequel thereto, pending application, if any,

also stands disposed of.

________________ VIPIN SANGHI, C.J.

_____________ R.C. KHULBE, J.

Dt: 28th September, 2022 Rathour