Sadhna Singh & Ors vs Union Of India & Ors

Dr. Sanjiv Kumar, Member (A)

The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the impugned orders dated 31.03.2009, 24.11.2009, 16.04.2010 and 25.08.2011 passed by respondent Nos. 2 and 3 and direct the respondents to appoint applicant No. 2 forthwith with all consequential benefits pursuant to the appointment letter dated 03.06.2008 which was issued by the respondents No. 4, and to grant such other reliefs as the applicants might be found entitled to and to allow the cost.

The facts of the applicants is that the husband of applicant No. 1 and father of applicant No. 2 entered the service in the respondents’ department on 16.09.1993 under ST category by caste Boksa which was recorded in the service record of the deceased Government servant. Husband of applicant No. 1 died in harness on 21.10.2007 and the applicant No. 1 requested for compassionate appointment in favour of applicant No. 2 (her son). The deceased employee has left behind his widow, four sons and two daughters, who were unmarried and minor at the time of death, and as they were in penurious condition and at the verge of starvation. The applicant No. 1 had applied for compassionate appointment to her son i.e. applicant No. 2 and after due consideration the compassionate appointment of applicant No. 2 was approved vide letter dated 03.06.2008 for compassionate appointment and applicant No. 2 willingness was sought for the post of Trackman in the pay scale of Rs. 2610-3540. The offer was accepted by applicant No. 2 and he submitted his willingness for joining duty on the said post, but he was not allowed to join by the respondents. Medical examination of applicant No. 2 was done on 16.06.2008, pursuant to the appointment letter dated 03.06.2008 and he was declared fit for joining the duty. The respondent No. 3 by impugned order dated 31.03.2009 raised the dispute regarding the false caste certificate of applicant No. 2 and rejected his appointment, which the applicant say to be illegal. Respondent No. 3 issued a letter dated 01.07.2008 to the applicant No. 2 directing him to submit the caste certificate alongwith affidavit for providing compassionate appointment. Applicant No. 2 had submitted his caste certificate No. 1087 dated 12.09.1997 issued by the Tehsildar, Kanpur Nagar alongwith affidavit before respondents. In the said caste certificate he is identified as caste Boksa (ST), which is totally correct. The applicant No. 2 had filed OA No.388 of 2011 before this Tribunal, which was disposed of vide order dated 18.07.2011 directing the respondent No. 2 to decide the representation of applicant No. 2 within a month. But vide impugned orders dated 31.03.2009, 24.11.2009, 16.07.2010 and 25.08.2011 passed by respondent Nos. 2 and 3, the applicants stated that vide those orders the respondents have arbitrarily rejected the compassionate appointment of applicant No. 2.

Applicant No. 2 submitted representation dated 20.10.2014 before respondent No. 4 alongwith his caste certificate with a statement that it was absolutely correct and he belong to caste Boksa which comes under ST category and requested to hold an inquiry regarding his caste certificate No. 1057 dated 12.09.1997 issued by Tehsildar. Tehsildar completed his inquiry and submitted his report on 29.05.2015 before respondents’ authority, wherein specifically stated that the caste certificate No. 1057 dated 12.09.1997 of the applicant No. 2 is correct and the same was issued by the office of the Tehsildar Kanpur, and that the applicant belong to caste Boksa of ST category. Hence, the applicant is entitled for compassionate appointment and he should be given appointment as per order dated 03.06.2008, but inspite of that the respondents have failed to give him job. They further argue that matter of compassionate appointment is not related to caste certificate as it is based on dying in harness rules, and based on the family condition and their penury for the survival of the family, and the respondents themselves have admitted in the impugned order that his caste was Boksa in ST category. If they have any other report on record which was never made available to the applicants. Hence, the orders of the respondents are prima-facie perverse and the same shall be set aside as illegal, arbitrary and beyond the documentary evidence and the existing rules.

The respondents have filed their short counter affidavit and they accepts the basic facts of the case that applicant No. 2’s father died in harness and due to which the applicant No. 2 was offered compassionate appointment, but the documents of caste which was to be verified of the applicants by the concerned department. The relevant department said that the caste certificate was fake and based on the said report that the caste certificate of applicant No. 2 was fake, his case for compassionate appointment was rightly rejected. The applicant challenge the respondents order before this Tribunal in OA No. 388 of 2011, wherein this Tribunal directed the respondents to decide the claim of the applicant within specified period with reasoned and speaking order. In compliance of this Tribunal’s order dated 18.07.2011, respondents decided the claim of the applicant with reasoned and speaking order dated 25.08.2011 and the applicants challenged the said order before this Tribunal in OA No. 159 of 2017 and the same has been dismissed for want of prosecution vide order dated 24.05.2017, and before filing this OA the applicants filed a restoration application in OA No. 159 of 2017 for recalling the order dated 24.05.2017. They vehemently argued that applicants have not come with clean hand before this Tribunal and concealed the substantial facts about filing the earlier OA No. 159 of 2017 for the same cause of action to the present OA. As such the present OA is not maintainable being the second OA on the same cause of action and deserves to be rejected as it is hit by law of resjudicata.

The applicants have filed rejoinder affidavit where they reiterate their facts of the case. Wherein, they vehemently denied the contents of paragraph Nos. 13, 14 and 15 of short counter affidavit and submits that the applicants were not aware about the filing of OA No. 159 of 2017 because after providing the documents to the previous counsel to file the said OA, subsequently the applicants had denied to file the said OA. But inspite of that the previous counsel filed it and there is no deliberate intention of the applicants in that filing as he has not given any consent, and that OA was dismissed in default for non prosecution and after knowledge of the filing of such OA, the applicants wanted to withdraw the same and to file fresh OA. In case of compassionate appointment, caste certificate was not relevant as his father’s caste was already on record in his service book, which the respondents could have verified. He further says that, he has a strong case as they are in penury and so he request to quash the impugned orders and direct the respondents to take him for compassionate appointment.

The case came up for final hearing on 27.03.2023. Shri A.D. Singh, learned counsel for the applicants and Shri S.C. Mishra, learned counsel for the respondents were present and heard. I have gone through the record and have carefully examined the rival contentions.

There are two issued before me to be decided. First, whether caste certificate was relevant for compassionate appointment, was it not within the knowledge of the respondents with whom the deceased employee worked and his service records were available to verify the caste of the applicant. Second, is this case hits by law of resjudicata as stated by the respondents as some earlier OA was filed on similar facts and grounds, which was dismissed for default.

Let us take the second question first. The applicant vehemently states at the time of arguments that the OA 159 of 2017 was not authorised by them and without their knowledge it was filed, but when they came to know of it that it is dismissed, they got it restored and then it was withdrawn on 18.02.2020. The respondents have not shed further light on whether the said OA 159 of 2017 was not restored or withdrawn on 18.02.2020.

The file of OA No. 159 of 2017 is available on record. Wherein, clearly on 18.02.2020 following order was passed:-

“2. Withdrawal Application No. 330/00282/2020 is allowed. O.A. No. 159/2017 is dismissed as withdrawn with liberty to seek appropriate relief. No costs.”

Hence, there is no problem on this count, and this OA is not hit by principle of resjudicata.

Now let us examine the first point. As the contention raised by the respondents are not convincing. Hence, I examine the first point, is caste certificate is relevant for compassionate appointment. Clearly, the compassionate appointment is based on the DOPT OM, where the scheme of compassionate appointment considers the assets and liability and immediate financial need of the family for their penury, and if comparatively the family is considered meritorious in a point scale deserving compassionate appointment, the same is granted. Nowhere, caste based reservations are either envisaged or mandated in the said OM of DOPT No. 14014/6/94-Estt(D) dated 09.10.1998 on compassionate appointment, hence caste certificate was secondary and not relevant for compassionate appointment per se. Moreover, as contended rightly by the applicant that caste certificate of the applicants could have been easily verified by the caste recorded of his deceased father in the service record available with the respondents. Hence, relying some other secondary sources to conclude, that also without giving proper opportunity and information to the applicant that how the respondents arrived at the conclusion that his caste certificate was fictitious, is not convincing. Their decision after giving compassionate appointment to the applicant to cancel the same order by concluding that his caste certificate was fictitious and bogus, appears to be out of place, as caste is not relevant parameter for compassionate appointment, and the caste of the applicant could have easily been ascertained from the service register of his father, which was available with the respondents.

In their short counter affidavit, the respondents have not been able to controvert the arguments and facts of the applicant. Hence, I pass the following orders:

“The OA is allowed. Impugned orders dated 31.03.2009, 24.11.2009, 16.04.2010 and 25.08.2011 are quashed and set aside. The respondents are directed to restore the compassionate appointment of applicant No. 2 and allow him to join immediately. As the respondents have not been careful in appreciating the rule and fact of the case, the applicant is also entitled for 50% of the basic salary from the date of his earlier willingness to join duty. This order may be implemented within four weeks time from the date of receipt of a certified copy of this order, failing which the respondents shall also pay 6% interest per annum thereafter. All associated MAs are also disposed of. No costs.”