Umesh Chandra Patnaik vs Union Of India & Ors.

PRAMOD KUMAR DAS, MEMBER (A): This OA was earlier filed by one Umesh Chandra Patnaik, challenging his non-appointment on compassionate ground notionally w.e.f. 17.01.2003. Since the original applicant died on 11.11.2020, i.e. during pendency of the OA, this OA is being pursued by his widow, namely Rasmita Kumari Patnaik after the order of this Tribunal dated 04.03.2021.

Facts of the case as adumbrated by Ld. Counsel for the applicant is that, on 24.08.1998, CRC approved the case of applicant’s husband and one Sri Dharmendra Sahu (Resp. No.6) for compassionate appointment in relaxation of normal recruitment rules and allotted them Postal Assistant cadre in Berhampur Division. On 21.11.2001, CRC approved the case of one Sri Debasis Mohanty for compassionate appointment and allotted him Postal Assistant cadre in Bhadrak Division. It is alleged that while the cases of applicant's husband and Sri Sahu's were ignored on the plea of want of vacancy, Sri Mohanty was appointed in Berhampur Division. Her husband moved this Tribunal in O.A. No. 557/2001 and Sri Sahu in O.A. No.137/2002. This Tribunal vide order dtd. 17.01.2003 allowed the O.A. No.137/2002 with a direction to the department to offer appointment to Sri Sahu in the next available vacancy in PA Cadre in Berhampur Dvn, if necessary by transferring Sri Mohanty from Berhampur to Bhadrak to which division he was originally selected. However, O.A. No. 557/2001 filed by applicant’s husband was dismissed vide order dtd. 29.04.2003, which was challenged by him before Hon'ble High Court in W.P.(C) No. 6812/2003. Meanwhile, Sri Sahu filed C.P. No.45/2003 for compliance of the order dtd. 17.01.2003 passed in O.A. No.137/2002 whereas the departmental authorities challenged the order dtd. 17.01.2003 before Hon'ble High Court of Orissa in W.P.(C) 8844/2004. The Hon'ble High Court vide order dtd. 14.03.2007 dismissed the W.P.(C) 8844/2004. The SLP filed by the Respondents was also dismissed by the Hon’ble Apex Court. Thereafter, on 11.01.2008 Sri Sahu was selected for appointment on compassionate ground to PA cadre in Berhampur Division and was asked to report for verification of the certificates.

Respondents by filing counter have contested the case of the applicant inter alia stating that after the death of Sudhakar Patnaik (father of the applicant’s husband), Ex-APM (Accounts), Chatrapur HO, the CRC considered the case of applicant’s husband and another Sri Dharmendra Sahu and allotted them Postal Assistant Cadre in Berhampur Division vide Memo No. RE/17-1/98 dated 24.08.1998 mentioning therein that their appointment is subject to satisfactory verification of documents and availability of vacancy in compassionate appointment quota. Due to non-availability of vacancy, they were asked for willingness for absorption in the post of GDS but they did not submit their willingness and filed OA Nos. 557/2001 (by the applicant’s husband) and 137/2002 (by Sri Dharmendra Sahu). Pursuant to the order dated 17.01.2003 passed by this Tribunal in OA 137/2002 upheld by the Hon’ble High Court of Orissa in W.P(C) No. 8844/2004 and subsequent dismissal of the SLP filed by the department, Sri Sahu was selected for appointment on compassionate ground to PA cadre in Berhampur Division and after completion of successful induction and practical training, he joined as PA Polasara SO on 10.09.2008. As per order dated 05.02.2008 passed in CP No. 45/2003, Sri Sahu was appointed notionally w.e.f. 17.01.2003 and his pay and seniority was fixed accordingly. Subsequently, pursuant to the order dated 18.01.2016 of this Tribunal in O.A. No.980/2013, Sri Sahu was enrolled under CCS (Pension) Rules, 1972.

Applicant has filed rejoinder as well as note of submission reiterating the stand taken in the O.A.

We have heard Ld. Counsel for both the parties and have gone through the materials placed on record.

Pleadings as well as materials placed on record unambiguously reveal that on 24.08.1998, CRC approved the case of applicant’s husband and Sri Dharmendra Sahu (Resp. No.6) for compassionate appointment in relaxation of normal recruitment rules and allotted them Postal Assistant cadre in Berhampur Division but on the plea of want of vacancy they were not given appointment. However, one Sri Debasis Mohanty, whose case was approved by the CRC on 21.11.2001 for compassionate appointment and was allotted Postal Assistant cadre in Bhadrak Division, was appointed in Berhampur Division. Pursuant to the order dated 17.01.2003 of this Tribunal in OA 137/2002 filed by Sri Dharmendra Sahu, which was upheld by the Hon'ble High Court of Orissa in W.P.(C) 8844/2004 and by the Hon’ble Apex Court, on 11.01.2008 Sri Sahu was selected for appointment on compassionate ground to PA cadre in Berhampur Division. Subsequently, in pursuance of the order dtd. 05.02.2008 passed by this Tribunal in C.P. 45/2003, Sri Sahu was appointed notionally w.e.f. 17.01.2003 and his pay and seniority was fixed accordingly but he was not enrolled under the CCS (Pension) Rule 1972. Being aggrieved, he filed O.A. No. 980/2013, which was allowed by this Tribunal vide order dtd. 18.01.2016. Accordingly, vide Office Memo No. 980/2013 dtd. 18.11.2016 (A/5), Sri Sahu was brought under the CCS (Pension) Rules 1972.

Going through the entire record and the chronology of events, this Tribunal is well convinced that the case of the applicant’s husband and Sri Dharmendra Sahu was approved for compassionate appointment by the CRC in 1998. After various court cases, Sri Sahu was selected for appointment on compassionate ground to PA cadre in Berhampur Division on 11.01.2008 and was asked to report for verification of the certificates and after undergoing training he joined as PA at Polasara SO on 10.09.2008. However, pursuant to the order of this Tribunal dtd. 05.02.2008 in C.P. 45/2003, Sri Sahu was appointed notionally w.e.f. 17.01.2003 and, after the order dated 18.01.2016 of this Tribunal in O.A. No. 980/2013, he was brought under the CCS (Pension) Rules 1972. Respondents in their counter have stated that the Hon’ble High Court allowed the case of the applicant’s husband on 03.12.2008 and by that time the New Pension Scheme, 2004 was in vogue. Further, since there was no order for his notional appointment and enrolment under CCS (Pension) Rules, 1972, the case of applicant’s husband cannot be equated with to that of Sri Dharmendra Sahu. We are not impressed with such submission of the respondents, especially when after dismissal of OA 557/2001 by this Tribunal vide order dated 29.04.2003, the W.P.(C) No. 6812/2003 filed by applicant’s husband was allowed by the Hon'ble High Court of Orissa vide order dtd. 03.12.2008 with direction to the respondents to take immediate steps for giving him appointment. Hence, in our considered view, the respondents made discrimination in not allowing the applicant’s husband notional appointment with effect from 17.01.2003 at par with Sri Sahu.

In view of the discussions made above, this OA is allowed with direction to the respondents to allow notional appointment to the applicant’s husband w.e.f. 17.01.2003 at par with Sri Sahu and grant all consequential service benefits accordingly. It is made clear that the entire exercise shall be completed within a period of 60 days from the date of receipt of a copy of this order. No costs.

Pleadings as well as materials placed on record unambiguously reveal that on 24.08.1998, CRC approved the case of applicant’s husband and Sri Dharmendra Sahu (Resp. No.6) for compassionate appointment in relaxation of normal recruitment rules and allotted them Postal Assistant cadre in Berhampur Division but on the plea of want of vacancy they were not given appointment. However, one Sri Debasis Mohanty, whose case was approved by the CRC on 21.11.2001 for compassionate appointment and was allotted Postal Assistant cadre in Bhadrak Division, was appointed in Berhampur Division. Pursuant to the order dated 17.01.2003 of this Tribunal in OA 137/2002 filed by Sri Dharmendra Sahu, which was upheld by the Hon'ble High Court of Orissa in W.P.(C) 8844/2004 and by the Hon’ble Apex Court, on 11.01.2008 Sri Sahu was selected for appointment on compassionate ground to PA cadre in Berhampur Division. Subsequently, in pursuance of the order dtd. 05.02.2008 passed by this Tribunal in C.P. 45/2003, Sri Sahu was appointed notionally w.e.f. 17.01.2003 and his pay and seniority was fixed accordingly but he was not enrolled under the CCS (Pension) Rule 1972. Being aggrieved, he filed O.A. No. 980/2013, which was allowed by this Tribunal vide order dtd. 18.01.2016. Accordingly, vide Office Memo No. 980/2013 dtd. 18.11.2016 (A/5), Sri Sahu was brought under the CCS (Pension) Rules 1972.

Going through the entire record and the chronology of events, this Tribunal has no hesitation to hold that although the case of the applicant’s husband and Sri Dharmendra Sahu was approved for compassionate appointment by the CRC in 1998, Sri Sahu was appointed notionally w.e.f. 17.01.2003, i.e. from the date of order of this Tribunal in OA 137/2002 filed by Sri Sahu, (A/5), and was brought under the CCS (Pension) Rules 1972 on the strength of various court orders as referred to above. On the other hand, O.A. No. 557/2001 filed by the applicant’s husband was dismissed by this Tribunal vide order dtd. 29.04.2003, which was challenged by him before Hon'ble High Court of Orissa in W.P.(C) No. 6812/2003 and the Hon'ble High Court vide order dtd. 03.12.2008 allowed the said writ petition with direction to the respondents to take immediate steps for giving him appointment. Since, he was offered the post of GDS, he filed M.C.No.8116/2009 for appropriate order and CONTC No. 2491/ 2009 for violation of order dtd. 03.12.2008. The Hon'ble High Court vide order dtd. 08.01.2010 disposed of the M.C.No. 8116/2009 with direction that he may accept the post offered to him at present and the moment a permanent cadre post meant for the compassionate appointees gets available, the first offer shall be given to him for acceptance. Thereafter, he joined as P.A, Tunmura Sub-Post Office under Sundargarh Dvn. on 23.03.2011. Hence, at no stretch of imagination, it can be held that Sri Sahu and applicant’s husband were sitting on a similar footing. Further, it has been disclosed by Ld. Counsel for the applicant that after an RTI application dated 25.01.2010, applicant’s husband was informed vide letter dated 09.02.2010 (A/3) that there existed one vacancy in PA cadre under compassionate quota in Berhampur Division. It is not the case of the applicant that there existed vacancy during 2003 and her husband was overlooked. The husband of the applicant after accepting the offer of appointment, joined as P.A, Tunmura Sub-Post Office on 23.03.2011 and after more than six years preferred representation on 05.12.2017 requesting the respondents to appoint him notionally w.e.f. 17.01.2003, i.e. from the date of order of this Tribunal in OA 137/2002 filed by Sri Sahu, and to enroll him under the CCS (Pension) Rules 1972 fixing his pay and seniority notionally at par with Sri Sahu, who was approved along with him by the CRC held on 24.08.1998. Since, the case of the applicant’s husband and Sri Sahu has been differentiated in the preceding paragraphs, the prayer of the applicant cannot be acceded to at this stage.

In view of the discussions made above, we find no merit in this OA, which is dismissed accordingly. No costs.