High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.7.2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARANW.P.No.15597 of 2008 and M.P.No.1 OF 20081. Union of India rep.by the Director (Staff) Ministry of Communications Department of Posts, Dak Bhava, Sansad Marg, New Delhi-110 001.2. The Director of Postal Services Head Quarters O/o. The Principal Chief Post Master General Tamil Nadu Circle, Chennai-600 002.3. The Senior Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 002.4. The Assistant Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 001.5. The Director of Postal Services Chennai City Region, Chennai-600 002. .. PetitionersVs.1. K. Arunachalam2. The Registrar Central Administrative Tribunal Chennai-600 104...RespondentsPetition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of CertiorarifiedMandamus calling for the records of the second respondent inimpugned order dated 29.11.2007 in O.A.No.673 of 2006 on thefile of the Central Administrative Tribunal, Chennai 104 andquash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Ms.R.Maheswari, ACGSC For Respondents : No Appearance - R1 Tribunal -R2O R D E R(Order of the Court was made by K.K.SASIDHARAN, J) This writ petition is directed against the order dated29.11.2007 in O.A.No.673 of 2006 whereby the Tribunal directedthe petitioners to consider the case of the first respondent forappointment on compassionate ground in GDS post.2. The factual details as culled out from the affidavitfiled in support of the writ petition are as follows:-(a) The first respondent preferred an Original ApplicationNo.673 of 2006 before the Tribunal challenging the orders dated1.6.2006, 24.2.2006 and 27.10.2005 and to direct the petitionersherein to reinstate him as GDS in any of the vacant post withall consequential reliefs. (b) In the original application filed before the Tribunal,it was the case of the first respondent as applicant that hisfather A.Karuppusamy was employed as Group D in the office ofSenior Superintendent of Post Offices, Tirunelveli and heretired on medical grounds on 31.8.1991. He had five daughtersand one son. The applicant being the only son he made anapplication to the appropriate authority in the year 1991 with arequest to consider his case for appointment on compassionategrounds. In view of the adverse circumstances of the firstrespondent, he was engaged as an outsider at Sankar Nagar SubOffice. In the meanwhile his case for compassionate appointmentwas considered and thereby his name was approved by the ChiefPostmaster General, Tamil Nadu Circle by granting relaxation ofrecruitment rules. (c) As per the direction of the Chief Postmaster General,by order dated 21.2.1997 the applicant was engaged as anoutsider at Sankar Nagar Sub Office. In the meantime theMinistry of Communications issued a circular dated 25.7.2001instructing the appropriate authority to call for willingness https://hcservices.ecourts.gov.in/hcservices/ from the approved candidates to consider them for appointment tothe post of GDS and immediately the first respondent made arepresentation to consider his case for such appointment. Thecase of the first respondent was considered by the AssistantSuperintendent of Post Offices, Tirunelveli and he wasappointed as GDS Mail Deliverer/mail carrier, Krishnagiri BranchOffice as per order dated 23.4.2006 and the same was giveneffect from 16.11.2002 and as such he had worked till 15.5.2004and thereafter he was appointed as GDSMC at Thatchanallur HeadOffice against a clear vacancy with effect from 27.2.2004.(d) Subsequently the first respondent filed an applicationto appoint him on regular basis. But due to his shock andsurprise, the Senior Superintendent of Post Offices as percommunication dated 27.10.2005 informed the first respondentthat his case has been considered and rejected by the postaldepartment as per order dated 22.9.2005, which was communicatedto him by the Post Master General, Southern Region, Madurai on25.10.2005. Though the first respondent preferred a petition tothe Ministry of Communications, his case was rejected on theground that his father had retired on 31.8.1991 itself and assuch there was no scope for considering him for appointment onaccount of long delay. In such circumstances, he wasconstrained to file the original application before theTribunal. 3. In the counter affidavit filed by the second respondent,before the Tribunal it was contended that after the retirementof the petitioner's father, the application was submitted on31.8.1991 for appointment of the first respondent oncompassionate ground and the said application submitted by thefather of the first respondent was considered and rejected bythe Circle Relaxation Committee during the year 1993 and thesame was communicated to him on 4.1.1994. Again during thevisit of the Chief Post Master General at Tirunelveli on21.3.1996, the first respondent's father met him and representedhis case and as directed by the Chief Post Master General, thedetails of the first respondent was collected for the purpose ofreconsideration. The said proposal for compassionate appointmentwas received on 22.8.1996 and the Circle Relaxation Committeerecommended the case for forwarding it to the Directorate forcondonation of delay. The matter was referred to the Directorateon 8.5.1997 and as per proceedings dated 22.9.1997, theDirectorate informed that the case has been considered by thecompetent authority and they have rejected the same on the https://hcservices.ecourts.gov.in/hcservices/ ground that his claim for compassionate appointment cannot beconsidered after a lapse of fourteen years. It was alsoindicated that there was no vacancy available so as toaccommodate the first respondent. In such circumstances, theyhave prayed for dismissal of the original application.4. The Central Administrative Tribunal found that theapplication of the first respondent on compassionateappointment was recommended by the Circle Relaxation Committeein the year 1997 itself and the proposal was rejected in 2005 onthe ground that 14 years have elapsed from the date ofretirement of the employee. According to the Tribunal the delayhas not been caused by the applicant and he was waiting forfavourable orders, since the proposal was recommended by theCircle Relaxation Committee. The Tribunal was of the opinionthat the first respondent was seeking only GDS Post inaccordance with the policy of the department and it was not thecase of the department that GDS vacancies are not at allavailable. In such circumstances having found that the case ofthe first respondent was considered by the Committee in 1997itself there was no justification to deny his claim and as suchthe Tribunal directed the writ petitioners to consider the caseof the petitioner for appointment in GDS Post.5. The order dated 29.11.2007 in O.A.No.673 of 2006 on thefile of the second respondent is the subject matter of thepresent writ petition.6. The learned counsel for the petitioner contended that itwas long after the retirement of the first respondent's fatherthat the application was preferred by him seeking compassionateappointment and the department on consideration of the matterand also taking into account the fact that there was no vacancyavailable, rejected the application and the said decision is onthe basis of relevant materials and in accordance with theguidelines for compassionate appointment and as such theTribunal was not justified in directing the petitioners toconsider the case of the first respondent de hors the scheme.It was also the contention of the learned counsel that there isno vacancy available to consider the case of the firstrespondent and as such the Tribunal was not justified indirecting the petitioners to consider his case. https://hcservices.ecourts.gov.in/hcservices/

7. Even though notice was issued to the first respondentand he was served, none appeared for the first respondent and assuch his name is printed in the cause list.8. The only point which arises for consideration in thepresent writ petition is as to whether the first respondent isentitled to get appointment on compassionate grounds.9. It is found from the pleadings that the father of thefirst respondent retired on invalidation on 31.8.1991 andimmediately after such retirement he made an application to thedepartment for giving compassionate appointment to the firstrespondent and the said application dated 16.3.1992 wasconsidered and the same was rejected by Circle RelaxationCommittee in the year 1993 and the said order was alsocommunicated to him on 4.1.1994. It was only after a period oftwo years that the father of the first respondent againsubmitted a representation on 21.3.1996 for the purpose ofreconsidering the earlier decision and as directed by the ChiefPost Master General, the matter was looked into again and aftergetting relaxation from the Circle Relaxation Committee thematter was considered by the first petitioner. It was foundthat the father of the first respondent had retired about 14years back and there were no vacancies available to accommodatethe first respondent and accordingly the prayer forcompassionate appointment was rejected. The Tribunal proceededon the basis that the first respondent has been workingtemporarily in GDS post and that he could be accommodated in thesaid post on compassionate ground and accordingly, thepetitioners were directed to consider such appointment.10. It is trite that compassionate appointment is anexception to the normal rule of appointment to public service bypermitting all the eligible candidates to participate in theprocess of selection. The idea behind such appointment is tohelp the family of the deceased or those employees, who haveretired on medical grounds to tied over the immediatedifficulties, on account of the untimely death of the familyhead or the retirement of bread winner on medical grounds. Suchappointment cannot be postponed to a later date till thedependant attains majority unless the scheme permits suchcourse. Similarly the dependants cannot claim as a matter ofright that they should be provided with a particular post in theservice de hors the scheme. https://hcservices.ecourts.gov.in/hcservices/

11. In the present case the application submitted by thefather of the first respondent on 16.3.1`992 has already beenrejected by the petitioners in the year 1993 itself and the samewas communicated to him on 4.1.1994. It was only by way ofreview, that the father of the first respondent has submittedanother representation to the Chief Post Master General and thesaid proposal was forwarded by the Circle Relaxation Committee.However on consideration at the higher level the application wasrejected. It was also indicated in the said order that therewas no vacancy for the purpose of accommodating the firstrespondent.12. The Apex Court in STATE BANK OF INDIA v. SOMVIR SINGH(2007(3) SCALE 42) considered the claim for compassionateappointment and held thus:- "7. Article 16(1) of the Constitutionof India guarantees to all its citizensequality of opportunity in mattersrelating to employment or appointment toany office under the State. Article 16(2)protects citizens against discriminationin respect of any employment or officeunder the State on grounds only ofreligion, race, caste, sex, descent. Itis so well settled and needs norestatement at out ends that appointmenton compassionate grounds is an exceptioncarved out to the general rule thatrecruitment to public services is to bemade in a transparent and accountablemanner providing opportunity to alleligible persons to compete andparticipate in the selection process. Suchappointments are required to be made onthe basis of open invitation ofapplications and merit. Dependants ofemployees died in harness do not have anyspecial or additional claim to publicservices other than the one conferred, ifany, by the employer.8. In Umesh Kumar Nagpal v. State ofHaryana, (1994) 4 SCC 138, this Courtheld, "As a rule, appointments in thepublic services should be made strictly on https://hcservices.ecourts.gov.in/hcservices/ the basis of open invitation ofapplications and merit. No other mode ofappointment nor any other consideration ispermissible. Neither the Governments northe public authorities are at liberty tofollow any other procedure or relax thequalifications laid down by the rules forthe post. However, to this general rulewhich is to be followed strictly in everycase, there are some exceptions carved outin the interests of justice and to meetcertain contingencies. One such exceptionis in favour of the dependants of anemployee dying in harness and leaving hisfamily in penury and without any means oflivelihood. In such cases, out of purehumanitarian consideration taking intoconsideration the fact that unless somesource of livelihood is provided, thefamily would not be able to make both endsmeet, a provision is made in the rules toprovide gainful employment to one of thedependants of the deceased who may beeligible for such employment. The wholeobject of granting compassionateemployment is thus to enable the family totide over the sudden crisis. The object isnot to give a member of such family a postmuch less a post for post held by thedeceased. 9. In UNION BANK OF INDIA & ORS. vs.M.T. LATHEESH (2006(7) SCC 350), thisCourt while dealing with the similarquestion observed that indiscriminategrant of employment on compassionategrounds would shut the door foremployment to the every growingpopulation of unemployed youth."13. In STATE OF UTTAR PRADESH AND ORS. v. PARAS NATH (1998(2) SCC 412), the Apex Court held that compassionateappointments are made only for the purpose of mitigating thehardship caused to the family of the deceased on account ofunexpected death of the employee and to alleviate the distress https://hcservices.ecourts.gov.in/hcservices/ of the family and none of these considerations can operate whenthe application itself is made after a long period of time.14. In APSRTC MUSHEERABAD v. SARVAUNNISSA BEGUM (2008(3)SCALE 143), the Apex Court while considering the claim forcompassionate appointment held that such appointment is notpossible when there was no vacancy to accommodate the applicant.15. The order of the Tribunal was on the basis of amisplaced sympathy and according to the Tribunal, delay wascaused on account of the indifferent attitude of the petitionersand as such they should consider the claim of the firstrespondent for compassionate appointment. The factual detailsclearly shows that even at the earlier stage, the application ofthe first respondent submitted through his father forcompassionate appointment was rejected by the petitioners and itwas only the subsequent application which came to be rejected inthe year 2005. It is also borne out that there is no vacancyavailable in the postal department to accommodate the firstrespondent on compassionate grounds. In such view of thematter, we do not find any reason to sustain the order of theTribunal and as such we are inclined to allow the writ petition.16. In the result, the order dated 29.11.2007 in O.A.No.673of 2006 is set aside and the writ petition is allowed. It ismade clear that this order shall not stand in the way ofcontinuation of the first respondent in GDS post in case he hasbeen permitted by the petitioners to function in the said post.Consequently, the connected MP is closed. No costs.Tr/Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Director (Staff) Union of India Ministry of Communications Department of Posts, Dak Bhava, Sansad Marg, New Delhi-110 001.2. The Director of Postal Services Head Quarters O/o. The Principal Chief Post Master General Tamil Nadu Circle, Chennai-600 002.3. The Senior Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 002.4. The Assistant Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 001.5. The Director of Postal Services Chennai City Region, Chennai-600 002.6. Registrar Central Administrative Tribunal, Chennai-600 104. + 1 cc to Ms. R. Maheswari ACGSC (SR No. 39472)TEJ(CO)SR/20.8.2008W.P.No.15597 of 2008& connected MP.