AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
By Hon’ble Mr. Mohan Pyare, Member (Administrative): Shri Siddharth Khare, learned counsel for the applicant and Shri K.K. Ojha, learned counsel for the respondents are present.
By means of this OA, the applicant has sought the following reliefs :
“ (i) That by means of a suitable order or direction quashing the order dated 17.10.2017 passed by respondent No.4.
(ii)That by means of a suitable order or direction commanding the respondent authorities to grant compassionate appointment to the applicant on the post of Postal Assistant after modifying the order dated 25.08.2017 to such extent.”
The brief facts of the case are that father of the applicant namely Vedpal Singh was a permanent Postal Assistant in the respondents’ department and died on 10.06.1999. When father of the applicant died, the applicant was aged 10 years. After attaining the majority, the applicant applied for compassionate appointment in accordance with his educational qualification. When no steps were taken by the respondents, the applicant sought information under RTI about the status of his case. The information was supplied under RTI along with a covering letter dated 12.03.2015 which comprised of a list in which the name of the applicant found place at Sl. No.22 for the post of Postal Assistant. Thereafter, an appointment order dated 25.08.2017 was issued to the applicant granting him temporary appointment as Postman at Agra Fort, Head Office. The applicant joined and assumed the charge of Postman at Agra Fort Head Office. It is submitted that a fresh meeting was held on 27.12.2016, 28.12.2016 and 05.01.2017 in which the applicant has been granted 59 merit points. On 17.10.2017, the respondents have passed the order that “in respect of your recommendation for the post of Postal Assistant in the CRC held on 24.04.2014 & 25.04.2014, it is intimated that due to wrong calculation of merit points as 67 instead of 64, you were erroneously recommended for the post of Postal Assistant instead of Postman. Therefore, there is no anomaly in the post for which you have been appointed on.” The applicant challenged the aforesaid impugned order dated 17.10.2017 in this OA.
In their counter affidavit, the respondents have submitted that the father of the applicant expired on 10.06.1999 while in service. On 25.10.1999, the mother of the applicant made an application for compassionate appointment in favour of the applicant, who was minor at that time. The respondents’ authority informed the mother of the applicant that his son is minor at this time so the case for appointment of her son on compassionate ground can be considered when the application for compassionate ground will be received according to rules. After attaining the age of majority, the case of the applicant was considered by the CRC in its meeting held on 24 and 25.04.2014 with 67 merit points and was recommended for Postal Assistant cadre by the Senior Superintendent of Post Offices, Saharanpur. It came to the notice that there was a mistake in merit points allocated to this case with respect to property of family which was Rs.31,42,800/- and accordingly deserves zero marks whereas 03 marks was allotted against the property of the family. Accordingly, correct merit points of the applicant should be 64 and candidates with 63 merit points were recommended for the post of Postman in the CRC held on 24 and 25.04.2014. The applicant was eligible to be appointed on the post of Postman but all the posts meant for Postman were filled so he could not be considered for the post of Postman on the above dates. His case was reconsidered by the CRC in its meeting held on 16 and 17.07.2015 but he could not be recommended as the applicant did not come within the merit due to availability of limited vacancy. The case of the applicant was again reviewed in the CRC meeting held on 27.12.2016, 28.12.2026 and 05.01.2027 and was recommended for appointment on compassionate ground on the post of Postman and forwarded to the Postal Directorate. After receipt of approval, the applicant was posted to Agra Division by Chief Postmaster General, U.P. Circle, Lucknow Memo No.Rectt/M-5/116/2001/8 dated 17.05.2017. The appointment order dated 25.08.2017 issued by the Postmaster Agra Fort HO is reasoned, legal and as per rules. On the basis of above discussions, the respondents have submitted that the OA of the applicant is devoid of merit and deserves to be dismissed.
In his rejoinder, the applicant has narrated almost the similar points and added that the applicant was wrongly precluded from being appointed as Postman despite the fact that he had secured the required number of merit points during 2014. During the selection process of 2015, the applicant has wrongly subtracted some points arising out of marriage of the sister of the applicant and awarded 59 merit points. They should have been stuck to 64 merit points as decided during the CRC meeting held during 2014.
Heard the learned counsel for the parties and perused the material available on record.
The applicant has relied on the judgment of Hon’ble Apex Court in the case of Secretary to Government Department of Education (Primary) and others Vs. Bheemesh Alias Bheemappa in Civil Appeal No.7752 of 2021 decided on 16.12.2021 in which the Hon’ble Apex Court has concluded that the date of death should be taken into consideration and guidelines criteria existing on such date should be made applicable while dealing with the appointment on compassionate ground. The relevant portion of the aforesaid judgment is reproduced as below :-
“18.Keeping the above in mind, if we critically analyse the way in which this Court has proceeded to interpret the applicability of a new or modified Scheme that comes into force after the death of the employee, we may notice an interesting feature. In cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, this Court directed the application of the new Scheme. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, this Court applied only the Scheme that was in force on the date of death of the employee. This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.
19.If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. Therefore, no one can claim to have a vested right for appointment on compassionate grounds. This is why some of the decisions which we have tabulated above appear to have interpreted the applicability of revised Schemes differently, leading to conflict of opinion. Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. Wherever the modified Schemes diluted the existing benefits, this Court applied those benefits, but wherever the modified Scheme granted larger benefits, the old Scheme was made applicable.
20.The important aspect about the conflict of opinion is that it revolves around two dates, namely, (i) date of death of the employee; and (ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die in harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.”
In the present case during the death of the father of the applicant, the applicant was only a minor and he has applied for the post much later i.e. during the year 2010, which was considered during the year 2014. Admittedly, the respondents have committed an error in awarding 67 points to the applicant and later discovering that he has been granted 03 additional points due to his financial condition and it was rectified making his point as 64. Even he could have been given 64 points during the year 2014 in the CRC meeting he was coming within the zone of consideration for the post of Postman based on the merit points obtained during the year 2014. He should have been considered during the same period for the post of Postman. It is clear that due to error committed by the respondents, the applicant has been posted on Postman belatedly. On a particular query, learned counsel for the applicant submitted that certain persons who have obtained the same 67 merit points were considered and appointed as Postal Assistant but nobody who is below in the seniority list to applicant was appointed as Postal Assistant. A perusal of the list shows that the persons appointed during 2014 have obtained same merit points and were appointed as Postal Assistant. At Sl. No.19 is the SC candidate whose date of birth is 08.07.1983. The candidate at Sl. No.20 is OC like the applicant but his date of birth is 15.07.1985. The third candidate mentioned by the learned counsel for the applicant at Sl. No.21 who is just above in the merit list than the applicant is also OC candidate like the applicant and his date of birth is 30.01.1989. Here, it is relevant to note that the date of birth of the applicant is 13.12.1989. He is youngest among the referred candidates at serial Nos. 19, 20 and 21 and so he is lowest in merit list among the above considered candidates.
Learned counsel for the applicant has also relied upon another two judgments which is mentioned below :-
Vikrant Tomar & 05 others Vs. State of U.P. & 2 others in Writ-A No.59295 of 2015, decided on 10.03.2017.
State of U.P. Thru Secy. & 2 others Vs. Vikrant Tomar & 05 others in Special Appeal Defective No.301 of 2017 decided on 17.05.2017.
Both the above judgments relied by the learned counsel for the applicant the Principle which has been discussed in the Apex Court judgment has been followed.
Thorough verification and critical analysis of the condition in this OA brings out that the applicant has not been able to establish his claim. It appears fair that when the applicant was eligible to be appointed as Postman based on the CRC held on 24 and 25.04.2014, he should have been appointed as Postman along with the candidates who were appointed Postman as a result of recommendation based on the CRC held on 24 and 25.04.2014. I find it proper to issue a direction to Competent Authority/amongst the respondents to reconsider the case of the applicant for the post of Postman w.e.f. the date from which the persons junior to him in that merit list dated 12.03.2015 on a notional basis. The applicant will not get any wages for the period when he has not performed his duties as Postman but other service related benefit shall accrue to him.
In view of the above direction, the OA is disposed of. No order as to costs.
All MAs pending in this O.A. also stand disposed off.