WP(C) 7730/2004 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER The petitioner, who was appointed as Typist on monthly contract basis on compassionate ground under the respondent No. 5, is aggrieved by dispensation o f her service. Be it stated here that there is no written order towards dispensa tion of her service. 2. The father of the petitioner, while was serving as Driver in the office of the respondent No. 5 died on 6.3.1996. Considering the plight of the family, the petitioner, his daughter was appointed as aforesaid by Annexure-I order date d 25.3.1996. It was indicated in the order that her such appointment was on comp assionate ground till such time a clear decision was received from the higher au thority against the vacant post of LDC of Agartala Sub-division. 3. In response to the said offer, the petitioner joined the service as Typi st and as per the statements made in paragraph 4 of the writ petition she contin ued in her service for long 4 years up to 31.3.2000. She was appointed in the ti me scale of pay of Rs. 950+ DA in the pay scale attached to the post of LDA i.e. Rs. 950-1500/- According to the petitioner her service on monthly salary in the time scale was dispensed with from 1.4.2000 and instead she was paid consolidat ed amount of Rs. 800/900/- per month from April onwards. 4. The writ petition was filed on 6.10.2004 and as per the statements made in paragraph 7 of the writ petition, she was still continuing in her service bei ng engaged in various jobs. According to the petitioner, she having continued in the service for long 8 years (by now 11 years), she is entitled to get regulari zation of the service or atleast temporary status in terms of the Scheme for Gra nt of Temporary Status and Regularization of Casual Workers formulated by the Go vernment of India in the Department of Personnel & Training and circulated vide OM dated 10.9.1993 effective from 1.9.1993 (Annexure-III). 5. By Annexure-IV letter dated 14.1.1999 issued from the office of the Dire ctor General, All India Radio and addressed to all Heads of AIR stations/offices , it was emphasized that action in terms of the said OM should be taken. For a r eady reference, the letter dated 14.1.1999 is quoted below: PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) DIRECTORATE GENERAL; ALL INDIA RADIO ********* No. 4/8/98-SVI/ New Delhi, Dated 14.1.99 Subject: Regularisation of casual workers/grant of temporary status. ******** It has been brought to the notice of this Directorate that casual workers engage d at some of the AIR Stations/Offices, inspite of fulfilling the prescribed elig ibility criteria, are neither granted temporary status nor considered for regula risation of their services. Attention in this connection is invited to Deptt. Of Personnel & Training OM No. 51016/2/90-Estt (C) dated 10th September, 1993, cop y enclosed for ready reference. All Heads of Stations/offices are requested to g rant temporary status and consider regularization of services of eligible casual workers who fulfill the prescribed conditions in accordance with DOF&T dated 10 .9.93. (Sd/- N.C. Gaur Dy. Director of Admn, (G) For Director General . 6. By Annexure-V letter dated 23.12.1997, the respondent No. 5 sought for t he approval of the authority for the purpose of accommodating the petitioner on compassionate ground against the vacant post of LDC in AIR Silchar. It was indic ated in the letter that there was another vacancy of LDC at Agartala. The petiti oner also made several representations for her regular appointment on compassion ate ground, however, nothing having materialized, she approached the Central Adm inistrative Tribunal by filing the Original Application being O.A. No. 124/2001 making a grievance against the inaction of the respondents. 7. The respondents filed their written statement in the aforesaid proceedin g before the Tribunal. In paragraph 10, it was admitted that the petitioner was paid salary on monthly basis in the initial of the time scale of pay of Rs. 950 + DA. It was further stated that the same amount was being paid to the petitione r from April 2000 onwards. In paragraph 11 of the written statement, the respond ents stated that her services were utilized as and when there was requirement. C ontrary to this position relating to two vacancies of LDC as indicated in the af orementioned letter dated 23.12.1997 (Annexure-V), it was stated in the written statement that there was no post of Typist in the Department. 8. In paragraphs 12 and 15 of the written statement, the respondents stated that the petitioner was engaged on casual basis to give her instant relief afte r her father’s death on humanitarian ground. It was also stated that her case wo uld be considered at the appropriate time by the competent authority. 9. The O.A. was disposed of by judgment and order dated 1.1.2002. The opera tive part of the judgment is quoted below: 4. On perusal of the written statement it appears that the case of the applican t is under consideration before the authority for appointment on compassionate g round. The posts are limited under the Recruitment Rules. Only 5% of the total v acancy in the Department are earmarked for appointment on compassionate ground. Appointment on compassionate ground is made as per the norms on the basis of the seniority. The action taken by the respondents cannot be said as arbitrary. Acc ording t the respondents also, the case of the applicant is under consideration and she is in the waiting list for appointment n compassionate ground and would be appointed against the future vacancies. Presently the respondents are utilizi ng the services of the applicant on daily wages basis to which also indicates th e anxiety of the respondents to extend all possible assistance to the deceased f amily. In this circumstances, we do not find any illegality on the part of the r espondents. It is expected that the respondents shall take up the case of the ap plicant for appointment on compassionate ground in due time against vacancies an d she will be duly absorbed against any vacancy in due course. 10. According to the petitioner she was entitled to receive salary in the co rresponding revised scale of Rs. 3050-4590/- made effective from 1.1.1996, but i nstead, she was being paid salary in the pre-revised scale of Rs. 950/- + DA. Fu rther, she was also deprived of her DA with effect from 1.4.2000. In paragraph 1 4 of the writ petition, the petitioner has stated that similarly situated employ ees even with lesser number of years of service to their credit have been regula rized in their services to the exclusion of the petitioner. 11. In paragraph 17 B of the writ petition, the petitioner has stated about the manner of dispensation of her service in October, 2004 i.e. after filing of the writ petition. According to her, on 14.10.2004, the respondent No. 7 calling her to his chamber hurled abuses being annoyed of filing the writ petition. He asked her not to come to office and offered her Rs. 500/-. Faced with such humil iation, she submitted Annexure-XII representation dated 17.11.2004 to the respon dent No. 5. According to the petitioner prior to making the representation, she had been attending the office regularly but was assigned no work. 12. By Annexure-XIII letter dated 10.12.2004, the respondent No. 5 intimated the petitioner that her services were utilised on casual basis upto 31.3.2000 a nd thereafter she has not been engaged at all and thus there was no question of any misbehaviour to her on 14.10.2004 and also her non-engagement. It was furthe r intimated that her claim for service was subjudiced and accordingly no further correspondence would be made to her. This letter was followed by the Annexure-X IV order dated 17/12.12.2004 issued by the Security Officer furnishing the instr uction that no person would be allowed to enter into the office premises without having genuine purpose. According to the petitioner, the order was issued only to enforce restriction of her entry into the office. 13. It is in the aforesaid back drop the petitioner has agitated her grievan ce relating to her disengagement and discontinuation of service, although she wa s appointed on compassionate ground. The respondents have filed their counter af fidavit. In paragraph 3, it has been admitted that the petitioner was appointed on compassionate ground till such time, a clear decision was received from the h igher authority, against the vacant post of LDC in Agartala Sub-division. As reg ards the claim of the petitioner for granting of temporary status, it has been s tated that in absence of any sanctioned post there is no question of conferring the petitioner temporary status. However, it has been stated that her case would be considered as and when her turn would come for appointment on compassionate ground against the quota earmarked for the same. 14. The respondents have filed an additional affidavit and in paragraph 5, i t has been stated that the petitioner had worked only upto 31.3.2000 and thus, t here was no question of meting out to her any misbehaviour and/or her disengagem ent on 14.10.2004. According to the respondents, on that day, the petitioner had met the respondent No. 7 and requested for assignment of work as she was facing financial hardship to which the said respondent replied to her that it was not possible to engage her on casual basis as per strict instruction of the higher a uthority. Significantly, in this affidavit, the respondents have annexed the cop y of the OM dated 5.5.2003, as per which a case for compassionate appointment wi ll remain under consideration for a maximum period of 3 years. 15. I have heard Mr. M. Chanda, learned counsel for the petitioner as well a s Mrs. G. Singha, learned CGSC representing the respondents. During the course o f hearing of the writ petition, it was felt necessary to have the records of the case indicating consideration of the case of the petitioner and her position in the list of compassionate appointees. Accordingly order was passed on 22.6.2007 upon a reference to the stand of the respondents in the proceeding before the T ribunal, according to which the case of the petitioner was to be considered at t he appropriate time. 16. Learned CGSC although produced certain purported records/ documents, sam e being not in conformity with the order dated 22.6.2007, her prayer for further time was granted enabling her to produce the records. As regards the contradict ory stand of the respondents in respect of engagement of the petitioner beyond 3 1.3.2000 also, the learned CGSC was requested to obtain instruction. However, sh e could not produce any further records nor she could furnish any clarification on the own contradiction of the respondents in which in one hand they have state d that the petitioner was allowed to continue after 31.3.2000 but on the other h and, they have contended in this proceeding in reference to the incident dated 1 4.10.2004 that the petitioner was not in service after 31.3.2000. 17. Such stand of the respondents in their additional counter affidavit as w ell as in the letter dated 10.12.2004 (Annexure-XIII) is belied by their own sta nd in the proceeding before the Tribunal. In paragraph 10 of the written stateme nt (filed on 26.9.2001), they stated thus: 10. That with regard to the statement made in para 4.7, the respondents stat e that the applicant was paid on daily wage basis as per the Minimum Wage Act of the State Government, she has never been paid on monthly basis at the rate of R s. 950/-+ DA. The daily wages was calculated on the basis of Rs. 950+DA. The sam e amount on lump sum basis is being paid from April, 2000 onwards. (Emphasis added) 18. Similarly, in the judgment of the Tribunal delivered on 1.1.2002 also th ere is mention of continuation of her service beyond April, 2000. Further, contr ary to the stand in the additional affidavit, the respondents in their main affi davit filed on 28.12.2004, have not denied the continuation of the services of t he petitioner beyond March, 2000. In the writ petition, the petitioner has state d about her continuation in service upto 31.3.2000 with the monthly pay of 950/- + DA and thereafter on consolidated pay of Rs. 800/900/-. She also made an inte rim prayer not to dispense with her services. Such stand of the petitioner has n ot been denied in the main affidavit. In response to the statements of the petit ioner in paragraph 8 and 9 of the writ petition to the effect that she has been working for more than 8 years from 1996, the respondents have stated in paragrap h 5 as follows: The deponent states that mere working for 8 years and/or for that matter having worked for 206/240 days every year would not entitled the writ petitioner for g rant of temporary status. The Department being sympathetic had been supporting t he writ petitioner and placed her case in the waiting list by paying wages etc. for miscellaneous works of the office. 19. In paragraph 6 of the main affidavit, the respondents have stated that t he writ petitioner is paid as per financial sanctions against wage based workers of the Department. 20. From the above materials, there is no manner of doubnt that the petition er, in whatever form, was in the employment of the respondents till filing of th e writ petition on 6.10.2004. It is in reference to this, her plea regarding dis pensation of service with effect from 14.10.2004 by the respondent No. 7, which fact has been brought on records by bringing amendment to the writ petition will have to be considered. The simple plea of the respondents is that since the pet itioner was not in service on 14.10.2004, there was no question of misbehaving w ith her and/or dispensation of her service. When the respondents, all along admi tted continuation of services of the petitioner even upto the stage of filing th e main affidavit on 28.12.2004, it is not understood as to how, later on, the sa me very respondents could take such a plea. 21. The plea of the petitioner that she was hurled with the abuses on 14.10. 2004 by the respondent No. 7 being annoyed of filing the writ petition and that she was not allowed to attend duties thereafter finds support from the falsehood to which the respondents have taken recourse to in their additional affidavit a s well as in Annexure-XIII letter of the writ petition dated 10.12.2004. Both, t he letter and the additional counter affidavit are subsequent to 14.10.2004. 22. It will be pertinent to mention here that it is one Mr. R.C. Das, the Ex ecutive Engineer, who is the respondent No. 5 had issued the Annexure-XIII lette r dated 10.12.2004 and has also filed the main affidavit as well as the addition al affidavit. In the letter dated 10.12.2004, the said Executive Engineer stated about the purported intimation furnished by the Sub-divisional Officer, AIR, Si lchar, who incidentally is the respondent No. 7. This has been repeated in the a dditional affidavit filed by said Sri R.C. das, unmindful of the fact that he in the main affidavit never denied continuation of services of the petitioner beyo nd March, 2000 and rather admitted the same as discussed above. 23. Above is a matter of serous concern. The respondents instead of being a model employer have taken recourse to falsehood. Tested in this touchstone, the specific plea of the petitioner with narration of the incident on 14.10.2004 wil l have to be accepted. This being the position, the case of the petitioner for c ontinuation in service either on regular basis or on casual basis with temporary status will have to be considered. 24. The petitioner was appointed, admittedly, on compassionate ground. In th e order of appointment apart from mentioning the same to be on contract basis, n o duration of the same was indicated. By Annexure-V letter dated 23.12.1997, the respondent No. 5 intimated the authority about 2 vacancies of LDC one lying at Silchar and another at Agartala, against the quota earmarked for compassionate a ppointment. The petitioner was appointed by order dated 25.3.1996 on contract ba sis till a clear decision was received from the higher authority against the par ticular vacant post. There is nothing to indicate that the case of the petitione r was considered against that particular vacancy or against the vacancy at Siclh ar. 25. If the petitioner was to continue in her contractual service till such t ime a decision was received from the higher authority, it is not understood as t o how her services could be dispensed with without any decision from the higher authority. This is another aspect of the matter, which will have to be kept in v iew in accepting the claim of the petitioner that she was in service even on 14. 10.2004. 26. During the course of hearing, Mrs. G. Singha, learned CGSC produced cert ain photocopies including the purported list of applicants for appointment on co mpassionate ground for Group-C post showing the name of the petitioner at serial No. 7. According to her no appointment having been offered to any one after her , the petitioner cannot claim any preferential treatment. This Court considering the stand of the respondents that the name of the petitioner is in the waiting list and that her case would be considered as and when her turn would come direc ted the respondents to produce the relevant records including the records indica ting consideration of the case of the petitioner. The direction was issued by or der dated 22.6.2007 considering the own stand of the respondents in the proceedi ng before the Tribunal that the case of the petitioner would be considered for c ompassionate appointment at the appropriate time. 27. Pursuant to the aforesaid order, Mrs. G. Singha, learned CGSC produced c ertain documents, not in original and not even photocopies of the originals. Rea lizing the true purport and import of the order dated 22.6.2007, she expressed h er helplessness and prayed for further time to produce the records in originals. She was also requested to clarify the contradiction relating to continuation of services of the petitioner beyond March, 2000. However, neither the records in original nor the clarification sought for could be furnished by her on the next date of hearing i.e. 30.8.2007. She produced the same very list, a typed copy, w hich was earlier produced. Had the relevant file, in which the case of the petit ioner was processed been produced, the stand of the respondents regarding consid eration of the case of the petitioner could have been appreciated. However, unfo rtunately, the respondents have chosen not to produce the relevant file for the reasons best known to them. 28. The petitioner was appointed on compassionate ground. There is no disput e that at that relevant point of time there were two vacancies of LDC. The respo ndent No. 5 by his Annexure-V letter dated 23.12.1997 intimated the authority ab out the said position with the request to accord necessary approval for appointm ent of the petitioner against the quota earmarked for compassionate appointment. In the proceeding before the Tribunal, the respondents denied the appointment o f the petitioner on compassionate ground unmindful of the fact that the very ord er of appointment of the petitioner indicated ground of appointment as compassio nate. In the written statement filed before the Tribunal, the respondents stated that the case of the petitioner had been recommended to the competent authority for appointment on compassionate ground as LDC. It was also stated that she was engaged on contractual/casual basis to provide instant relief in view of death of her father. It was further stated that her case would be considered at the ap propriate time by the competent authority. 29. From the above narration of facts, what has transpired is that as per th e own admission of the respondents, the petitioner was in service beyond March, 2000. But in the additional affidavit they took altogether a different stand sta ting that the petitioner had worked only upto 31.3.2000. This aspect of the matt er has been discussed above in detail. In fact the respondents are guilty of sup pression of material facts and/or falsification of actual state of affair. It is in this context, the incident of 14.10.2004, from which date the petitioner has been debarred from entering into the office will have be considered and underst ood. This aspect of the matter has also been discussed above. 30. The competent authority by its Annexure-IV letter 14.4.1999 emphasized t he need for regularization of the services of casual workers in terms of the afo rementioned Scheme for Grant of Temporary Status and Regularization of Casual Wo rkers. As per the said scheme, a casual worker who was in employment on the date of issuance of the OM and had rendered 240/206 days depending upon number of wo rking days in a week is to be conferred temporary status entailing certain benef its with future benefit of regularization of service. The scheme came into effec t from 1.9.1993. 31. Mr. M. Chanda, learned counsel for the petitioner referring to the afore said scheme has argued that even leaving aside the injustice done to the petitio ner towards dispensation of her service, which was admittedly provided to her on compassionate ground, the petitioner is also entitled to the benefits envisaged in the said scheme. On the other hand Mrs. G. Singha, learned CGSC has argued t hat the said scheme is not applicable to the petitioner, she being not a Group-D casual worker. Strictly speaking, the scheme may not be applicable to the petit ioner not because the petitioner was not a Group-D casual worker. The scheme cam e into effect from 1.9.1993 and was made applicable to casual workers in employm ent on the date of issuance of the OM. The petitioner being in casual employment after the effective date, strictly speaking the said scheme may not be applicab le to her. However, the principles underlying ought to have been followed by the respondents before dispensing with the services of the petitioner in the manner and method in which the same was done. 32. The petitioner continued for long 8 years in the services of the respond ents. Even in the appointment order, there was no indication of any duration of her contractual appointment on compassionate ground. It was only on 14.10.2004, her service was dispensed with in the manner and method indicated above. The res pondents apart from taking recourse to falsification of truth have also withheld the relevant file in which the case of the petitioner was purportedly considere d. 33. During the course of hearing, Mrs. G. Singha, learned CGSC upon a refere nce to Annexure-AR/1 OM dated 5.5.2003 annexed to the additional affidavit conte nded that the case of the petitioner cannot be considered for compassionate appo intment since the stipulated period of three years has expired. Apart from the f act that the said OM cannot have any retrospective application, the respondents in their affidavit filed on 28.12.2004 did not take the said stand, although the OM was very much available. Their only contention was that the case of the peti tioner would be considered. Now being confronted with the aforesaid incident of 14.10.2004, the respondents have taken shelter under the said OM. 34. The purpose of providing appointment on compassionate grounds is to miti gate the hardship due to death of the breadearner in the family. Such appointmen t should, therefore, be provided immediately to redeem the family in distress. I n fact,