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Union Of India And Others v. Mohd. Khalid And Others - WRIT - A No. 25110 of 2004  RD-AH 6178 (4 April 2007)
Civil Misc. Writ Petition No. 25110 of 2004
Union of India, through Secretary, Department of Post,
New Delhi and others
Mohd. Khalid and another
Hon.Shishir Kumar, J.
This writ petition has been filed for quashing the order dated 26.3.2004 passed by Central Administrative Tribunal in Original Application No.362 of 2004 (Annexure 1 to the writ petition ).
The facts as narrated in the writ petition are that the father of the respondent No.1 Sri Rafiq Ali was compulsorily retired on medical ground with effect from 28.11.1997 who was working on the post of Driver in the department. The respondent No.1 had applied for compassionate appointment and his name was approved for giving compassionate appointment vide its letter dated 30.3.1999 on the post of Postal Assistant. Since there was no vacancy under 5% quota in Agra Division, as such, an offer was made for appointment on the post of Gramin Dak Sewa to the respondent No.1. Earlier an Original Application was filed by the respondent No.1 as Original Application No.691 of 2001 which was finally disposed of by order dated 18.1.2002 with a direction to the petitioners to expedite by making an offer of appointment to the respondent No.1 within a period of three months. In pursuance of the order passed by the Tribunal an offer of appointment was given to the respondent No.1 on the post of Gramin Dak Sewa vide its order dated 19.4.2002.
An application for contempt was filed by the respondent No.1 as Contempt Petition No.116 of 2002 for disobedience of the order passed by the Tribunal but the same was dismissed. The respondent No.1 instead of giving his consent to the offer of appointment dated 19.4.2002 challenged the said order before the Tribunal by filing Original Application No.362 of 2003. A counter affidavit was filed before the Tribunal clearly stating therein that there is no vacancy in Agra Division under 5% quota in Group C cadre, as such, he cannot be given appointment in Group-C post in absence of any vacancy within quota. As there was a vacancy for the post of Gramin Dak Sewak which has been offered to the respondent No.1 and unless and until there exist any vacancy within 5% quota no direction can be given by the Tribunal. The Central Administrative Tribunal under misconception of law and facts both and without considering the controversy involved in the case, directed the petitioners to make an offer of appointment to the respondent No.1 on Group- C post against first available vacancy.
It has been submitted by Sri K.C.Sinha, learned counsel for petitioners that respondent No.1 cannot claim compassionate appointment as a matter of right. The Tribunal has failed to take into consideration that vacancy of 5% only can be filled up on the basis of compassionate appointment. The Apex Court has held that if there is no vacancy within 5% quota, the department is not bound to offer an appointment. The Tribunal has not decided the real controversy involved in the original application as to whether any vacancy existed in Agra Division within 5% quota against Group- C post.
A finding to this effect that respondent No.1 have clearly indicated that case of respondent No.1 stood approved for an appointment on post of Postal Assistant which is a Group C post but no such assurance is available on the file lying with the department.
In view of the aforesaid fact, the learned counsel for the petitioners submits that purpose of appointment under Dying in Harness Rules is to give financial assistance to family whose earning member has suddenly disappeared in harness. Nobody can give a choice for giving an appointment of a particular post. This will frustrate the purposes of appointment under the Dying in Harness Rules.
Notices were issued and the respondents were granted time to file counter affidavit. As the counter and rejoinder affidavits have already been exchanged, therefore, with the consent of the parties, the writ petition is being disposed of finally.
It has been submitted on behalf of the respondents that the respondents have earlier approached the Tribunal and the Tribunal vide its order dated 18.1.2002 has directed to expedite by making an offer of appointment to the respondent within a period of three months from the date of order. As by order dated 29.7.1999 an offer of appointment on the post of Postal Assistant was given and it was made clear that the appointment will be given as per availability of vacancy of Postal Assistant at Agra Division. He waited for a period of two years and by letter dated 10.5.2001, the Senior Superintendent of Post Offices Agra, wanted to seek the consent to accept the job in other ministries or departments. A consent to that effect was given on 14.5.2001. In Original Application No.691 of 2001, the counsel who appeared for the department gave an undertaking that though some more time is likely to be taken in offering an appointment to the respondent No.1. By order dated 19.4.2002, an offer of appointment on the post of Extra Departmental Branch Post Master was offered to the respondent No.1 which is neither a Group C or Group D post and nor even a civil post as it has been laid down in G.D.S (Conduct and Employment) Rules, 2001. In the rules of compassionate appointment also it has been laid down that offer of appointment on compassionate ground will be made only against Group-C and Group-D posts. The post of Extra Departmental Delivery Agent has been defined not being a civil post and no salary is prescribed in the relevant rules and only allowances are paid for the work and the said post is also not pensionable post.
The counsel for the respondents brought the scheme for compassionate appointment of Swami Compilation of 1999. Rule 4 states that appointment can be made on Group-C or Group-D posts against the direct recruitment quota.
In para 6 of the counter affidavit a clear averment to that effect has been made regarding availability of the vacancies in Agra Division, Agra and the chart clearly shows that only in Agra Division of Postal Department, 102 employees of Group- C cadre retired from service during the period 1.1.1997 to 31.7.2005.
It has further been submitted that there is no specific denial in the rejoinder affidavit filed on behalf of the petitioner.
We have heard Sri K.C.Sinha, learned counsel for the petitioners and Sri O.P.Gupta, learned counsel for the respondent No.1 and have perused the record.
From the record, it is clear that respondent No.1 was offered an appointment on Group C post and it was mentioned that he will be given appointment as soon as there exist any vacancy but as the respondent No.1 was not appointed he filed an original application before Tribunal and the same was disposed of finally with a direction to give an offer of appointment to the respondent No.1 within a period of three months. Subsequently, the respondent No.1 was offered an appointment as E.D.D.A which is not a Group C post. The respondents have challenged the order dated 19.4.2002 on the ground that in Original Application No.691 of 2001 as the applicant was offered an appointment under Group C posts and according to the scheme for compassionate appointment the appointment under the Dying in Harness Rules can be made on Group C and Group D posts. It is also clear from the record that post of E.D.D.A is not a civil post and no salary is being paid. It is also not pensionable.
The Tribunal has recorded a finding that as the respondent in earlier Original Application No.691 of 2001 has given an assurance at the time of disposal of the aforesaid case that the appointment will be given to the respondent but it will take some time. Considering the aforesaid concession and assurance given by the petitioner before the Tribunal the Tribunal had passed the order in Original Application No.691 of 2001. During the pendency of Original Application No.691 of 2001, it was not the case of the petitioner in counter affidavit that there was no vacancy, therefore, the respondent cannot be appointed on Group C or Group D posts. The assurance given in Original Application No.691 of 2001 by the petitioner is being quoted below:-
"The learned counsel appeared on behalf of the respondents submits that though some more time is likely to be taken in offering an appointment to the applicant, the commitment to appoint him in a group 'C' post in a different department of posts is beyond doubt. More time may, therefore, be given to the respondents to make an offer of appointment to the applicant."
Taking into consideration the aforesaid assurance, the Tribunal has disposed of the Original Application by its order dated 26.3.2004 with the followed orders:-
"Accordingly, without expressing any view on the legality or otherwise of the impugned order (Annexure-5), I direct the respondents, that an order to honour the commitment/assurance as given by their learned counsel in O.A.No.691/2001 (Annexure-4) quoted above; to make an offer to the applicant for appointment on Group-'C' post against the first available vacancy under the quota, meant for recruitment on compassionate grounds in any of the departments under their jurisdiction."
The Tribunal after taking into consideration of the fact of the case, as pleaded by the parties, has passed the aforesaid order.
In view of the aforesaid fact, we find no illegality in the order passed by the Tribunal. The writ petition is devoid of merits and is hereby dismissed.
There shall be no order as to costs.
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