IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.7.2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN W.P.No.15597 of 2008 and M.P.No.1 OF 2008 1. Union of India rep.by the Director (Staff) Ministry of Communications Department of Posts, Dak Bhava, Sansad Marg, New Delhi-110 001. 2. The Director of Postal Services Head Quarters O/o. The Principal Chief Post Master General Tamil Nadu Circle, Chennai-600 002. 3. The Senior Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 002. 4. The Assistant Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 001. 5. The Director of Postal Services Chennai City Region, Chennai-600 002. .. Petitioners Vs. 1. K. Arunachalam 2. The Registrar Central Administrative Tribunal Chennai-600 104. ..Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records of the second respondent in impugned order dated 29.11.2007 in O.A.No.673 of 2006 on the file of the Central Administrative Tribunal, Chennai 104 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Ms.R.Maheswari, ACGSC For Respondents : No Appearance - R1 Tribunal -R2 O R D E R (Order of the Court was made by K.K.SASIDHARAN, J) This writ petition is directed against the order dated 29.11.2007 in O.A.No.673 of 2006 whereby the Tribunal directed the petitioners to consider the case of the first respondent for appointment on compassionate ground in GDS post. 2. The factual details as culled out from the affidavit filed in support of the writ petition are as follows:- (a) The first respondent preferred an Original Application No.673 of 2006 before the Tribunal challenging the orders dated 1.6.2006, 24.2.2006 and 27.10.2005 and to direct the petitioners herein to reinstate him as GDS in any of the vacant post with all consequential reliefs. (b) In the original application filed before the Tribunal, it was the case of the first respondent as applicant that his father A.Karuppusamy was employed as Group D in the office of Senior Superintendent of Post Offices, Tirunelveli and he retired on medical grounds on 31.8.1991. He had five daughters and one son. The applicant being the only son he made an application to the appropriate authority in the year 1991 with a request to consider his case for appointment on compassionate grounds. In view of the adverse circumstances of the first respondent, he was engaged as an outsider at Sankar Nagar Sub Office. In the meanwhile his case for compassionate appointment was considered and thereby his name was approved by the Chief Postmaster General, Tamil Nadu Circle by granting relaxation of recruitment rules. (c) As per the direction of the Chief Postmaster General, by order dated 21.2.1997 the applicant was engaged as an outsider at Sankar Nagar Sub Office. In the meantime the Ministry of Communications issued a circular dated 25.7.2001 instructing the appropriate authority to call for willingness https://hcservices.ecourts.gov.in/hcservices/ from the approved candidates to consider them for appointment to the post of GDS and immediately the first respondent made a representation to consider his case for such appointment. The case of the first respondent was considered by the Assistant Superintendent of Post Offices, Tirunelveli and he was appointed as GDS Mail Deliverer/mail carrier, Krishnagiri Branch Office as per order dated 23.4.2006 and the same was given effect from 16.11.2002 and as such he had worked till 15.5.2004 and thereafter he was appointed as GDSMC at Thatchanallur Head Office against a clear vacancy with effect from 27.2.2004. (d) Subsequently the first respondent filed an application to appoint him on regular basis. But due to his shock and surprise, the Senior Superintendent of Post Offices as per communication dated 27.10.2005 informed the first respondent that his case has been considered and rejected by the postal department as per order dated 22.9.2005, which was communicated to him by the Post Master General, Southern Region, Madurai on 25.10.2005. Though the first respondent preferred a petition to the Ministry of Communications, his case was rejected on the ground that his father had retired on 31.8.1991 itself and as such there was no scope for considering him for appointment on account of long delay. In such circumstances, he was constrained to file the original application before the Tribunal. 3. In the counter affidavit filed by the second respondent, before the Tribunal it was contended that after the retirement of the petitioner's father, the application was submitted on 31.8.1991 for appointment of the first respondent on compassionate ground and the said application submitted by the father of the first respondent was considered and rejected by the Circle Relaxation Committee during the year 1993 and the same was communicated to him on 4.1.1994. Again during the visit of the Chief Post Master General at Tirunelveli on 21.3.1996, the first respondent's father met him and represented his case and as directed by the Chief Post Master General, the details of the first respondent was collected for the purpose of reconsideration. The said proposal for compassionate appointment was received on 22.8.1996 and the Circle Relaxation Committee recommended the case for forwarding it to the Directorate for condonation of delay. The matter was referred to the Directorate on 8.5.1997 and as per proceedings dated 22.9.1997, the Directorate informed that the case has been considered by the competent authority and they have rejected the same on the https://hcservices.ecourts.gov.in/hcservices/ ground that his claim for compassionate appointment cannot be considered after a lapse of fourteen years. It was also indicated that there was no vacancy available so as to accommodate the first respondent. In such circumstances, they have prayed for dismissal of the original application. 4. The Central Administrative Tribunal found that the application of the first respondent on compassionate appointment was recommended by the Circle Relaxation Committee in the year 1997 itself and the proposal was rejected in 2005 on the ground that 14 years have elapsed from the date of retirement of the employee. According to the Tribunal the delay has not been caused by the applicant and he was waiting for favourable orders, since the proposal was recommended by the Circle Relaxation Committee. The Tribunal was of the opinion that the first respondent was seeking only GDS Post in accordance with the policy of the department and it was not the case of the department that GDS vacancies are not at all available. In such circumstances having found that the case of the first respondent was considered by the Committee in 1997 itself there was no justification to deny his claim and as such the Tribunal directed the writ petitioners to consider the case of the petitioner for appointment in GDS Post. 5. The order dated 29.11.2007 in O.A.No.673 of 2006 on the file of the second respondent is the subject matter of the present writ petition. 6. The learned counsel for the petitioner contended that it was long after the retirement of the first respondent's father that the application was preferred by him seeking compassionate appointment and the department on consideration of the matter and also taking into account the fact that there was no vacancy available, rejected the application and the said decision is on the basis of relevant materials and in accordance with the guidelines for compassionate appointment and as such the Tribunal was not justified in directing the petitioners to consider the case of the first respondent de hors the scheme. It was also the contention of the learned counsel that there is no vacancy available to consider the case of the first respondent and as such the Tribunal was not justified in directing the petitioners to consider his case. https://hcservices.ecourts.gov.in/hcservices/ 7. Even though notice was issued to the first respondent and he was served, none appeared for the first respondent and as such his name is printed in the cause list. 8. The only point which arises for consideration in the present writ petition is as to whether the first respondent is entitled to get appointment on compassionate grounds. 9. It is found from the pleadings that the father of the first respondent retired on invalidation on 31.8.1991 and immediately after such retirement he made an application to the department for giving compassionate appointment to the first respondent and the said application dated 16.3.1992 was considered and the same was rejected by Circle Relaxation Committee in the year 1993 and the said order was also communicated to him on 4.1.1994. It was only after a period of two years that the father of the first respondent again submitted a representation on 21.3.1996 for the purpose of reconsidering the earlier decision and as directed by the Chief Post Master General, the matter was looked into again and after getting relaxation from the Circle Relaxation Committee the matter was considered by the first petitioner. It was found that the father of the first respondent had retired about 14 years back and there were no vacancies available to accommodate the first respondent and accordingly the prayer for compassionate appointment was rejected. The Tribunal proceeded on the basis that the first respondent has been working temporarily in GDS post and that he could be accommodated in the said post on compassionate ground and accordingly, the petitioners were directed to consider such appointment. 10. It is trite that compassionate appointment is an exception to the normal rule of appointment to public service by permitting all the eligible candidates to participate in the process of selection. The idea behind such appointment is to help the family of the deceased or those employees, who have retired on medical grounds to tied over the immediate difficulties, on account of the untimely death of the family head or the retirement of bread winner on medical grounds. Such appointment cannot be postponed to a later date till the dependant attains majority unless the scheme permits such course. Similarly the dependants cannot claim as a matter of right that they should be provided with a particular post in the service de hors the scheme. https://hcservices.ecourts.gov.in/hcservices/ 11. In the present case the application submitted by the father of the first respondent on 16.3.1`992 has already been rejected by the petitioners in the year 1993 itself and the same was communicated to him on 4.1.1994. It was only by way of review, that the father of the first respondent has submitted another representation to the Chief Post Master General and the said proposal was forwarded by the Circle Relaxation Committee. However on consideration at the higher level the application was rejected. It was also indicated in the said order that there was no vacancy for the purpose of accommodating the first respondent. 12. The Apex Court in STATE BANK OF INDIA v. SOMVIR SINGH (2007(3) SCALE 42) considered the claim for compassionate appointment and held thus:- "7. Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex, descent. It is so well settled and needs no restatement at out ends that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer. 8. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, this Court held, "As a rule, appointments in the public services should be made strictly on https://hcservices.ecourts.gov.in/hcservices/ the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. 9. In UNION BANK OF INDIA & ORS. vs. M.T. LATHEESH (2006(7) SCC 350), this Court while dealing with the similar question observed that indiscriminate grant of employment on compassionate grounds would shut the door for employment to the every growing population of unemployed youth." 13. In STATE OF UTTAR PRADESH AND ORS. v. PARAS NATH (1998 (2) SCC 412), the Apex Court held that compassionate appointments are made only for the purpose of mitigating the hardship caused to the family of the deceased on account of unexpected death of the employee and to alleviate the distress https://hcservices.ecourts.gov.in/hcservices/ of the family and none of these considerations can operate when the application itself is made after a long period of time. 14. In APSRTC MUSHEERABAD v. SARVAUNNISSA BEGUM (2008(3) SCALE 143), the Apex Court while considering the claim for compassionate appointment held that such appointment is not possible when there was no vacancy to accommodate the applicant. 15. The order of the Tribunal was on the basis of a misplaced sympathy and according to the Tribunal, delay was caused on account of the indifferent attitude of the petitioners and as such they should consider the claim of the first respondent for compassionate appointment. The factual details clearly shows that even at the earlier stage, the application of the first respondent submitted through his father for compassionate appointment was rejected by the petitioners and it was only the subsequent application which came to be rejected in the year 2005. It is also borne out that there is no vacancy available in the postal department to accommodate the first respondent on compassionate grounds. In such view of the matter, we do not find any reason to sustain the order of the Tribunal and as such we are inclined to allow the writ petition. 16. In the result, the order dated 29.11.2007 in O.A.No.673 of 2006 is set aside and the writ petition is allowed. It is made clear that this order shall not stand in the way of continuation of the first respondent in GDS post in case he has been permitted by the petitioners to function in the said post. Consequently, the connected MP is closed. No costs. Tr/ Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Director (Staff) Union of India Ministry of Communications Department of Posts, Dak Bhava, Sansad Marg, New Delhi-110 001. 2. The Director of Postal Services Head Quarters O/o. The Principal Chief Post Master General Tamil Nadu Circle, Chennai-600 002. 3. The Senior Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 002. 4. The Assistant Superintendent of Post Offices Tirunelveli Sub Division, Tirunelveli-627 001. 5. The Director of Postal Services Chennai City Region, Chennai-600 002. 6. Registrar Central Administrative Tribunal, Chennai-600 104. + 1 cc to Ms. R. Maheswari ACGSC (SR No. 39472) TEJ(CO) SR/20.8.2008 W.P.No.15597 of 2008 & connected MP. https://hcservices.ecourts.gov.in/hcservices/