High Court · 2012

The petitioner Union of India and its functionaries being aggrieved by t he judgment and order dated 19.12.2008 passed by the learned Central Administrat ive Tribunal, Gauhati Bench, Guwahati (for short, hereinafter referred to as ’th e Tribunal’) in O.A. 2005/07 initiated by the respondent herein seeks to invoke the writ jurisdiction of this Court for redress. The facts in short necessary for the disposal of the instant petition ar e that the respondent’s father while serving as a Postal Assistant under the Min istry of Communications, Government of India had to go on premature retirement o n medical ground on 21.2.95 and he eventually expired on 14.9.95 leaving a depen dent family including him (respondent). The respondent who was then prosecuting his studies represented on 30.10.96 before the authorities of the Postal Departm ent seeking employment on compassionate ground. His candidature was considered b y the concerned Circle Selection Committee (for short, CSC) on relaxation of the relevant Recruitment Rules and was on 3.10.97 approved for appointment in the P ostal Assistant cadre. The respondent was also informed of his selection vide le tter No. Staff/16-Misc/97 dated 4.11.97. No appointment, however, followed. On a representation submitted by him on 16.9.98, the authorities on 18.6.99 sought h is willingness to join the Army Postal Service (for short, APS) to which he resp onded in the affirmative. While the matter rested at that, he was again asked ab out his willingness to join any other department vide letter dated 13.3.2001 but he did not do so. As on 25.2.2003 thereafter persons including respondent Nos. 4 and 5 were offere d appointment on compassionate ground, the respondent submitted a representation on 15.12.2004 before the concerned authorities and eventually approached the le arned Tribunal with O.A. No. 306/2005 which was disposed of by requiring the dep artmental authorities to consider his grievance. He having informed about the in ability on the part of the Department to provide him compassionate ground, he in stituted O.A. No. 05/2007 which has since been disposed of by the judgment and o rder impugned herein. In the written statement filed the official respondents therein while re iterating the above facts pleaded that in terms of the DOP & Training Letter No. 14014/23/99 Estt (D) dated 3.12.99 a ceiling of 5% of the vacancies in Group C and D posts had been imposed for compassionate appointment and further outer lim it of one year had been fixed for the subsistence of the list of the candidates approved to be selected but not appointed for want of vacancies. According to t he authorities, the respondent could not be provided appointment to APS as in te rms of the norms applicable thereto it was permissible only from the eligible of ficials who had meanwhile been appointed in the Department. As at the relevant t ime the respondent was not a departmental candidate, his case could not be espo used for appointment to APS though he had expressed his willingness in that rega rd. The authorities further pleaded that the concept of waiting list of candidat es for compassionate appointment was done away with pursuant to the letter of th e Directorate (Posts) New Delhi Letter No. 37-16/2001-SPB-I dated 25.7.2001 alon g with DOP & Training Letter No. 42012/4/2000-Estt (D) dated 24.11.2000 and as v acancies to accommodate the respondent till then did not occur, he could not be provided therewith. The failure of the respondent to respond to the offer for in duction in other service as given to him was also cited as a ground disentitling him for compassionate appointment. The learned Tribunal having noticed, amongst others, the fact that the respondent had been approved for compassionate appoin tment long back in the year 1997 and that the ceiling of 5% vacancies had been e ffected only from 3.12.99, concluded that denial of such appointment to him was unfair and discriminatory. In reinforcing that finding, the learned Tribunal al so took note of the fact that though the respondent Nos. 4 and 5 had been select ed in the same process as the respondent for compassionate appointment in the ye ar 1997 and that he (respondent) was serial No.1 of the list of the empanelled c andidates and held that the decision to provide compassionate appointment to the m (respondent Nos. 4 and 5) in preference to him amounted to hostile discriminat ion. A direction was thus issued to the Union respondents to provide appointment to the respondent on compassionate ground. Ms Huda has urged that in view of the huge delay between the date on whi ch the respondent had been approved for appointment subject to the availability of vacancies and the institution of the Original Application before the learned Tribunal by him, the directions contained in the impugned judgment and order bei ng totally inconsistent with the law pertaining to compassionate appointment, in tervention of this Court is called for. According to her, the appointment of res pondent Nos. 4 and 5 on compassionate ground per se does not confer any right on the respondent to claim such appointment they having approached the learned Tri bunal much earlier to espouse their cause. The respondent being apparently guilt y of negligence and laches, a direction to provide him with compassionate appoi ntment at this distant point of time would unsettle the settled state of things that has crystallized over the years and, thus, the impugned judgment and order ought to be interfered with. Mr Hussain in reply has contended that the ceiling of 5% of the vacanci es for compassionate appointment having been introduced only in 1999, having re gard to the position of the respondent in the select list therefor, the directio n of the learned Tribunal to provide him therewith cannot be faulted with. If th e respondent Nos. 4 and 5 who had not fared better that him in the same selectio n could be provided with compassionate appointment, the denial thereof to the re spondent is obviously an act of discrimination as has been construed by the lear ned Tribunal and, therefore, the impugned judgment and order ought to be sustain ed, he insisted. Upon hearing the learned counsel for the parties and on a consideration of the materials on record, we are of the view that the direction of the learn ed Tribunal, considering the nature of the appointment involved which conceptual ly is different from the one for regular recruitment, cannot be sustained. True it is that the respondent was selected for appointment as far back as in the ye ar 1997 and the ceiling on the vacancies meant for compassionate appointment was introduced in the year 1999, but materials are not forthcoming to establish that during that period vacancy was available for compassionate appointment b ut the respondent was not provided therewith. The respondent Nos. 4 and 5 we re accorded such appointment only in the year 2003 and, that too, on the interve ntion of the learned Tribunal at their instance. That even if the ceiling of 5% of vacancies for compassionate appointment was introduced in the year 1999, ha ving regard to the nature thereof (appointment), inferably some limit on the quo ta for such appointment must have been throughout in contemplation of the author ities. In that view of the matter, we are inclined to conclude that the appointm ent of respondent Nos. 4 and 5 on compassionate ground even if they were placed below the respondent in the same select list per se would not signify that enoug h number of vacancies did exist at all relevant points of time before 1999 again st which the respondent could have been adjusted. To reiterate, the appointment of respondent Nos. 4 and 5 had been in compliance of the direction of the learne d Tribunal in a proceeding instituted by them two years before that of the respo ndent. The above notwithstanding, the long drawn factual background cannot be i gnored. Admittedly, the respondent had been approved for appointment on compassi onate ground on relaxation of the relevant Recruitment Rules and the pleadings o n behalf of the Union authorities demonstrate that his name continued to be in t he waiting list from 1999 till it was called off in the year 2001. In other wor ds, the respondent waited in expectation for such appointment on the basis of hi s selection on the touchstone of suitability for long four years. Before approac hing the learned Tribunal in the year 2007, he had instituted O.A. No. 306/2005 following a representation seeking compassionate appointment taking clue from su ch appointments provided to respondent Nos. 4 and 5. As the said representation had remained unheeded, he instituted O.A. No. 05/2007. In the above factual premise, while interfering with the direction of th e learned Tribunal to provide compassionate appointment to the respondent, we ar e of the view that it would be expedient and in the interest of justice to dispo se of the instant petition with the direction that as and when vacancy/ vacancie s occur for compassionate appointment in a post commensurate to the academic and other attributes of eligibility possessed by the respondent, his case, if so re presented, would be considered along with other candidates and in evaluating the ir comparative suitability, he would be provided due weightage of his selection/ approval for such appointment in the year 1997. Ordered accordingly. No costs.