IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.6.2007
CORAM
THE HONOURABLE MR.JUSTICE DHARMARAO ELIPE
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
W.P.Nos.38990 of 2002,
2832 to 2835 of 2003, 9996 of 2003, 10059 of 2003, 30188 of
2003, 30345 of 2003, 34623 of 2003,
2567 of 2004, 2711 of 2004, 2750 of 2004, 2762 of 2004, 3003
of 2004, 3004 of 2004, 3766 of 2004, 3767 of 2004, 3810 of
2004, 4163 of 2004, 4164 of 2004, 4172 of 2004, 4940 of
2004, 4986 of 2004, 5132 of 2004, 6369 of 2004, 6424 of
2004, 11367 of 2004, 21433 of 2004,
22944 of 2004, & 19967 of 2005,
AND
W.P.M.P.Nos.58153 of 2002,
3542 to 3545 of 2003, 12665 of 2003, 12760 of 2003, 36870 of
2003, 37066 of 2003, 42057 of 2003,
2934 of 2004, 3142 of 2004, 3222 of 2004, 3239 of 2004, 3537
of 2004, 3539 of 2004, 4428 of 2004, 4430 of 2004, 4481 of
2004, 4901 of 2004, 4903 of 2004, 4912 of 2004, 5771 of
2004, 5819 of 2004, 7525 of 2004, 7608 of 2004, 13392 of
2004, 25916 of 2004, 27754 of 2004,
21748 of 2005
AND
W.V.M.P.No.2067 of 2006
W.P.No.38990 of 2002:
1. Union of India,
The Chief Postmaster General
Tamil Nadu Circle
Chennai 2
2. The Senior Superintendent of Post Offices
Chennai City South Division
Chennai. ..Petitioners
Vs
1. The Central Administrative Tribunal
City Civil Court Buildings
Chennai 104.
2. M.Nallavan ..Respondents
W.P.No.38990 of 2002 has been filed under Article 226
of the Constitution of India, praying to issue a Writ of
Certiorari to call for the records in O.A.No.1131 of 2001 on
the file of the Central Administrative Tribunal, Madras and
quash the order dated 28.3.2002.
===============================================================================
For petitioners in all the W.Ps. :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.V.T.Gopalan, Addl.Solilcitor General for M/s.S.Yashwanth, M.Devadoss,
M.Dhamodharan, A.Rajendran, G.Nanmaran, K.L.Nandakumar, Sudharshan
Sundar, Sunita Kumari, P.Chandrasekaran & K.Kannan, all Central Govt.
Standing Counsel
===============================================================================
For R.3 & R7 in WP.10059/2003, For R2, R3, R5, R8, R9, R11 to R42 in
WP.9996/03
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.Vijay Narayanan, S.C. for M/s.R.Parthiban
===============================================================================
For R.1 in W.P.2567/2004, For R.1 in WP.3004/2004 For R.1 to R.4, R.7 to 21 in
WP.4172/2004, For R.1 in WP.3003/2004, For R.1 in 2762/2004, For R.3 to R6,
R8 to 10 & 15 in WP.6424/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.Vijay Narayanan, S.C. for M/s.Karthikmukundan
===============================================================================
For R.1 in W.P.34623/2003 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Ms.R.Vaigai
===============================================================================
For R.1 in W.P.30188/2003, For R.2 in WP.11367/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.P.Rajendran
===============================================================================
For R.1 in WP.4163/2004, For R.1 in WP.3810/2004, For R.1 in WP.4940/2004,
For R.2 in WP.38990/2002, For R.1 in WP.4986/2004, For R.2 in
WP.22944/2004, For R.2 in WP.2832 to 2835/2003 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.R.Malaichamy
===============================================================================
For R.1 in WP.2711/2004, WP.3766/2004, R.1 in W.P.3766/2004, for R.1 in
WP.4164/2004, For R.1 in WP.6369/2004, For R1, R.2, R.7, R11 & R.13 to R.16
In WP.6424/2004, For R.2 in WP.21433/2004, for R.5 & R6 in WP.4172/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
No appearance
===============================================================================
For R.1 & R.2 in WP.4986/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.V.Vijayshankar
===============================================================================
For R.1 in W.P.19967/2005 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.A.Arokiadoss
===============================================================================
For R.2 to R.22 in W.P.2832/2003 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.M.Radhakrishnan
===============================================================================
COMMON ORDER
DHARMARAO ELIPE, J.
Since all the matters are inextricably connected with each other, they are heard together and disposed of by this common order.
2. The applicants before the Tribunal, who are the respondents herein, are all the dependents of Group-C and Group-D Staff of the Postal Department, who died in harness or retired voluntarily on medical grounds and they all have been approved for appointment on compassionate grounds in Group-C and Group-D posts. They all are working in various leave vacancies and short term vacancies. Since number of vacancies are lying vacant, their services are being utililzed for leave vacancies and thus they are serving without any break in service. The applicants were awaiting appointment in regular posts and were also imparted clerical training by the Department itself. After the judgment of the Apex Court in UMESH KUMAR NAGPAL vs. STATE OF HARYANA [(1994) 4 SCC 138], fixing the number of vacancies to be filled up by compassionate ground appointment as 5%, the Chief Post Master General, Tamil Nadu circle, issued a letter on 28.5.2001, seeking willingness in writing for consideration for appointment on compassionate grounds by other Ministries/Department from the candidates approved for compassionate appointment, who could not be given employment in the petitioner Department since they can also be absorbed in other Government Departments. Accordingly, all the applicants have submitted their willingness giving a choice of departments in which they prefer to be appointed on regular basis.
3. While things stood thus, the Ministry of Communications, Union of India, by the orders dated 25.7.2001 and 4.1.2002, impugned before the Tribunal, has taken a decision that any maintenance of the waiting list of approved candidates for compassionate appointment should be discontinued immediately and since the waiting list has been disposed, this may cause hardship to the approved candidates and in consideration of these aspects, a decision was taken to consider such wait listed candidates for vacancies in the post of Extra Departmental Staff. Based on the said letter,
the Chief Post Master General, Tamil Nadu Circle, has issued a letter on 6.8.2001 to various Post Masters seeking a list of vacancies in the Extra Departmental Staff. Aggrieved, the applicants have filed a batch of Original Applications before the Tribunal praying to set aside the letter dated 25.7.2001 of the Ministry of Communications, Union of India and to direct the Department to appoint the applicants as Postal Assistants within a time limit.
4. The writ petitioners/Department filed a common counter before the Tribunal stating that the compassionate appointment cases are considered by the Circle Selection Committee, constituted in accordance with instructions of Directorate's Letter No.24-269/87-SPB 1 dated 24.9.1989 on merits; that as per the scheme of compassionate appointment circulated by the Department of Personnel & Training OM No.14014/6/94-Estt (D) dated 9.10.1998, it has been clearly mentioned at para 7(f) that if sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/Departments/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list; the Supreme Court has ruled in the cases of HIMACHAL ROAD TRANSPORT CORPORATION
vs. DINESH KUMAR [JT 1996(5) SC 319] and HINDUSTAN AERONAUTICS LIMITED vs. SMT.A.RADHIKA THIRUMALAI [JT 1996 (9) SC 197] that appointment on compassionate grounds can be made only if a vacancy is available for that purpose.
5. It is further submitted that by OM.No.14014/23/99-Estt(d) dated 3.12.1999, it was further clarified by Department of Personnel and Training that the Committee for
considering a request for appointment on compassionate ground should also take into account the position regarding availability of vacancy for such appointment for a really
deserving case and only if vacancy meant for appointment on compassionate grounds are available within a year, that too within the ceiling of 5% mentioned, such cases should be approved; that the quota for compassionate appointment was reduced to 5% as per the decision of the Government of India communicated in Department of Posts letter No.24-170/94-SPB I dated 11.12.1995 with the result number of candidates selected for compassionate appointment are kept in the waiting list; that the proposal made by the Department of Posts to the Department of Personnel and Training to relax the 5% limit in order to accommodate the approved candidates kept in the waiting list was also turned down by the Department of Personnel and Training citing the Supreme Court judgment in U.K.Nagpal's case, cited supra, vide OM NO.42012/4/2000-Estt (d) dated 24.11.2000; that the Department of Posts had to discontinue the maintenance of the waiting list of approved candidates for compassionate appointment on the basis of Ministry of Personnel D.O.P.&T OM No.42012/4/2000-Estt (D) dated 24.11.2000 communicated in DG Posts letter No.24-1/99-SPB-I, dated 8.2.2001.
6. It is further submitted that as on date, all the approved candidates already in the waiting list were asked to express their willingness for consideration for appointment by other Ministries, however, it was subsequently found by the Nodal Ministry that the chances for absorption in the Ministries are remote and that there are also not enough vacancies; that keeping this in view, it was felt that an opportunity can be given to such wait-listed candidates who are waiting for some time to be considered for vacant posts of Grameen Dak Sevaks, if they are willing and eligible for the post and hence the Director General (Posts) instructed the Postal circles to offer Grameen Dak Sevaks vacancies to dependents of regular employees (Grade C and Grade D) who are already approved for appointment on compassionate grounds and whose names are kept in the waiting list for want of regular departmental vacancies under compassionate appointment quota as on 8.2.2001; that there is no obligation on the part of the approved candidates kept in the waiting list to accept the offer of appointment as Grameen Dak Sevaks and therefore, there is no arbitrariness in the Scheme of offering Grameen Dak Sevak post to the candidates as their willingness have been called for and they have not been forced to work as Gameen Dak Sevaks; that the averment that there are approximately 1,500 vacancies in the posts of Postal Assistants cadre is not correct and there are only 505 vacancies in the Postal Assistant cadre for 2001 out of which 50% is to be filled up under Direct Recruitment; as appointments have already been made every year upto 1999 in the 5% quota of the compassionate appointments, and the candidates considered over and above the prescribed quota were kept in waiting list anticipating chances of more vacancies and when the chances are remote, it was decided to offer them Grameen Dak Sevak posts taking into consideration the hardship faced by them.
7. Since the Tribunal, has quashed the impugned orders dated 25.7.2001 and 4.1.2002 and directed the Department to consider the case of the applicants for regularization against the regular vacancies in the grade of Postal Assistants/Postman/Grade 'C' or Grade 'D' posts as per the normal rules and orders governing compassionate ground
appointments, the Department has come forward to file these writ petitions and obtained orders of interim stay.
8. In the meanwhile, there was a proposal to grant one time relaxation to accommodate all the persons included in the waiting list . Before a decision could be taken on this proposal at the Headquarters, the Chief Post Master General, Tamil Nadu Circle had issued a notification to fill up 146 vacancies by direct recruitment and some of the applicants have filed O.A.No.693 of 2004 for a direction to forbear the writ petitioners/Department from making any appointment by way of direct recruitment and that O.A. was disposed of directing the department to take a decision on the proposal pending with the Ministry to grant one time relaxation. Pursuant to the said order, the Department has rejected the proposal and initiated action to fill up further 277 vacancies and the same was challenged by filing an application before the Tribunal. It is also stated that the persons who had applied much later to some of the applicants have been considered for such appointment, while some of the applicants are waiting for appointment in violation of the instructions issued in the letter dated 29.9.1989. The Tribunal, directed the Department to consider the case of seniors, to be appointed, if their juniors are appointed, based on the date of the application. Aggrieved, some writ petitions have also been filed which are also the subject matter in this batch of writ petitions.
9. The main core of the argument of the learned Additional Solicitor General appearing for the writ petitioners in all these writ petitions is that there are well laid down rules regarding compassionate appointment which stipulate that compassionate appointment will be made to enable the family of the deceased employee to tide over the financial crisis caused due to the death of the sole breadwinner, who died leaving the family in penury and without sufficient means of livelihood and such an appointment shall be made only on regular basis and that too if regular vacancy meant for that is available upto the maximum of 5% of the vacancies and such an appointment is an exception to general rule that appointment to public office should be made on the basis of competitive merits and once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Art.14 of the Constitution the Tribunal and the applicant cannot have a choice to choose a post under the compassionate ground appointments, without considering the good intention of the writ petitioners to offer Grameen Dak Sevaks to the applicants, even though the waitlist has been cancelled, has wrongly allowed the application, which needs upset by this Court.
10. On the contrary, the learned counsel appearing for the respondents/applicants before the Tribunal would submit that the Tribunal has considered all the facts and
circumstances of the case encircling the whole issue and has correctly arrived at the conclusion to allow the applications filed by the applicants and therefore, all these writ petitions filed by the State are liable to be dismissed and would pray to dismiss all the writ petitions.
11. In support of his contentions, the learned Additional Solicitor General of India would cite the following decisions:
1. HINDUSTAN AERONAUTICS LTD. vs. A.RADHIKA THIRUMALAI [(1996) 6 SCC 394];
2. STATE OF J&K AND OTHERS vs. SAJAD AHMED MIR [(2006) 5 SCC 766] and
3. UNION BANK OF INDIA AND OTHERS vs. M.T.LATHEESH [(2006) 7 SCC 350].
12. There is no quarrel with regard to the propositions laid down therein by the Apex Court. But, in all these matters, the applicants have crossed the stage, which is the subject matter in all the above cited judgments in the sense that all the applicants were selected and approved for a posting on compassionate ground by a duly constituted Selection Committee as per the procedure laid down and they were also provided with necessary training by the Department at its expenses in their training institutes and employed them against leave vacancies and most of the applicants are in employment continuously. Thus, the applicants in these cases are not seeking compassionate appointment so as to apply the norms prescribed by the Apex Court in the above cited judgments, but all these applicants are seeking regularization of their appointments pursuant to their selection by the duly constituted Selection Committee and still they continue in their services and therefore, it cannot be said that these applicants are still in waiting list. Therefore, these cases cannot, in no way, be compared with the above cited cases and therefore, the ratio laid down in the above cases by the learned Additional Solicitor General does not come to the rescue of the case of the Department/petitioners.
13. Admittedly, the Post of Grameena Dak Sevak is not a civil post. As could be seen from Endt.No.B5/1-1/Rlgs, dated 18.7.2002 issued by the Senior Superintendent of Post Offices, Madurai Division, Madurai, Grameena Dak Seveaks cannot be treated as Central Government Employees. Since all the applicants were already offered appointments and while circulating their candidature for appointment against leave vacancies, the Department had indicated that their services would be regularised against future vacancies, they were under legitimate expectation that their services would be regularised in future course of action since they were already held to be suitable and qualified for such posts by the duly constituted Selection Committee. Therefore, as has been pleaded on the part of the applicants, they would have definitely given up all their attempts to pursue other options available for securing employment and by this time, most of the applicants might have even been over-aged to pursue any further post. Further, having allowed the applicants to work for a number of years with the fond hope of getting their posts regularized, now the Department offers them a non-civil post like Grameena Dak Sevak lest to vacate the post now they are occupying, which cannot at all be appreciated. As has been rightly observed by the Tribunal, the entire approach and the action of the Department to offer the post of Grameena Dak Sevak to the applicants is without any basis since the same is not at all covered by the compassionate appointment.'
14. As has already been stated supra, all the applicants have been selected by a duly constituted Selection Committee and after affording them the necessary training, they were listed for regularization and their services were also utilized against leave/short term vacancies. Therefore, it cannot be said that the applicants are in waiting list for compassionate ground appointment, which stage they have already crossed.
15. Pursuant to our direction to file a statement showing as to how many approved candidates for the post of postman etc. are waiting for appointment and how many were
absorbed in regular vacancies between the period 1989 and 2001 and also to furnish the details regarding the recruitment conducted between 1989 and 2001 and how many regular vacancies have been filled up during the said recruitment, the writ petitioners have filed a statement stating that of the 622 candidates approved for
compassionate appointment in Tamil Nadu Circle, 89 candidates have been appointed as Grameena Dak Sevaks and the remaining 533 candidate who have been offered Grameena Dak Sevaks posts have not come forward to accept the same and have chosen to seek legal remedy for compassionate appointment before the Court and since there are no vacancies under 5% quota for compassionate appointment, waiting list has been abolished by the Government and the wait listed candidates are eligible for Grameen Dak Sevak posts according to their willingness and eligibility as on date; that apart from them, 600 fresh applications from the year 2000 to 2005 have been received from the Units/Regions of Tamil Nadu Circle seeking compassionate appointment and these fresh applications have been processed and kept ready for submission to the Circle Relaxation Committee, but Circle Relaxation Committee could not be convened due to the matter being subjudice before the Court.
16. For the said note submitted by the Department, a strong and forcible reply note has been submitted by the respondents/applicants stating that the Department has omitted to indicate the number of direct recruitment vacancies sought to be filled up for the year 2006 in Postal Assistant/Sorting Assistant category and the number of direct recruitment vacancies arising year wise is not total number of direct recruitment vacancies but denotes only 1/3rd of the same, since there is a ban on direct recruitment from the year 2000. Since 5% quota has to be calculated on the basis of the total direct recruitment vacancies arising for that year and not on the reduced number of vacancies after applying the ban, the number of direct recruitment vacancies arising year wise as shown by the Department should be multiplied by three to arrive at
the total number of direct recruitment vacancies for that year.
17. For the sake of convenience and better appreciation, the details furnished by the petitioners and the respondents are extracted in tabular columns below post-wise
(a) Postal Assistants/Sorting Assistants:
(a) Postal Assistants/Sorting Assistants:
Details as furnished by the Department Details furnished
by the
respondents
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Year No. of No. of No, of No, of No, of No, of
Vacancies Vacancies persons candidates vacancies vacancies
Under under appointed waiting under for
Direct 5% Quota under for direct compassio
Recruitment compassio compassio recruit- nate
( Regular nate nate ment appointm
vacancies) ground in appoint- (Regular ents 5%
12% Quota ment vacancies) of
upto 1994 before regular
and 5% applying vacancies
quota ban
from 1995
------------------------------------------------------------------------------------------------------------
2000-01 160 8 -- -- 480 24
2002 160 8 -- -- 480 24
2003 120 6 -- -- 360 18
2004 60 3 -- -- 180 9
2005 320 16 -- -- 960 48
s
2006 235 12 -- -- 705 35
TOTAL 1055 53 -- -- 3165 158
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(b) Postman/Mail Guard
Details as furnished by the Department Details furnished
by the
respondents
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Year No. of No. of No, of No, of No, of No, of
Vacancies Vacancies persons candidates vacancies vacancies
Under under appointed waiting under for
Direct 5% Quota under for direct compassio
Recruitment compassio compassio recruit- nate
( Regular nate nate ment appointm
vacancies) ground in appoint- (Regular ents 5%
12% Quota ment vacancies) of
upto 1994 before regular
and 5% applying vacancies
quota ban
from 1995
------------------------------------------------------------------------------------------------------------
2000-01 -- -- -- -- -- --
2002 40 2 -- -- 120 6
2003 60 3 -- -- 180 9
2004 40 2 -- -- 120 6
2005 120 6 -- -- 360 18
TOTAL 260 13 -- -- 780 39
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(c) Group D/Mailman:
Details as furnished by the Department Details furnished
by the
respondents
------------------------------------------------------------------------------------------------------------
Year No. of No. of No, of No, of No, of No, of
Vacancies Vacancies persons candidates vacancies vacancies
Under under appointed waiting under for
Direct 5% Quota under for direct compassio
Recruitment compassio compassio recruit- nate
( Regular nate nate ment appointm
vacancies) ground in appoint- (Regular ents 5%
12% Quota ment vacancies) of
upto 1994 before regular
and 5% applying vacancies
quota ban
from 1995
------------------------------------------------------------------------------------------------------------
2000-01 80 4 -- -- 240 12
2002 40 2 -- -- 120 6
2003 40 2 -- -- 120 6
2004 20 1 -- -- 60 3
2005 160 8 -- -- 480 24
TOTAL 340 17 -- -- 1020 51
------------------------------------------------------------------------------------------------------------
18. Thus, from the note submitted by the Department and the reply note submitted by the respondents/applicants we are able to understand that there are sufficient number of Vacancies in the Department to absorb the applicants into the services of the Department.
19. The Tribunal, has considered all the facts and circumstances of the case in their proper perspective, applying the correct proposition of law on the subject and has arrived at a correct conclusion to direct the Department to consider the applicants for regularisation against regular vacancies in which we are unable to find any illegality or perversity in approach calling for our interference under Article 226 of the Constitution. Therefore, all these writ petitions fail and they are liable to be dismissed.
In the result, all the writ petitions are dismissed confirming the orders passed by the Tribunal. The petitioners are directed to regularise the services of the applicants before the Tribunal against regular vacancies in the grade of Postal Assistants/Postman/Grade-D posts as per the normal rules and orders governing compassionate ground appointments within three months from the date of receipt of
a copy of this order.
No costs. Consequently, all the connected Miscellaneous Petitions are closed.
Rao
To
The Registrar,
Central Administrative Tribunal,
Chennai.
[PRV/10635]
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