Dear Comrades! The Honourable Madras High Court has rejected the appeal of the department and directed to absorb RRR Candidates selected under Compassionate grounds within three months. It may be remembered that the department had committed to absorb them irrespective of the verdict of the Madras High Court. Now the Federation and all CHQs would take all efforts to get those candidates absorbed in the department. The land mark judgment is reproduced here under:
--
C.C.Pillai
Secretary General NFPE
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.6.2007
CORAM
THE HONOURABLE MR.JUSTICE DHARMARAO ELIPE
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
W.P.Nos.38990 of 2002,
2832 to 2835 of 2003, 9996 of 2003, 10059 of 2003, 30188 of
2003, 30345 of 2003, 34623 of 2003,
2567 of 2004, 2711 of 2004, 2750 of 2004, 2762 of 2004, 3003
of 2004, 3004 of 2004, 3766 of 2004, 3767 of 2004, 3810 of
2004, 4163 of 2004, 4164 of 2004, 4172 of 2004, 4940 of
2004, 4986 of 2004, 5132 of 2004, 6369 of 2004, 6424 of
2004, 11367 of 2004, 21433 of 2004,
22944 of 2004, & 19967 of 2005,
AND
W.P.M.P.Nos.58153 of 2002,
3542 to 3545 of 2003, 12665 of 2003, 12760 of 2003, 36870 of
2003, 37066 of 2003, 42057 of 2003,
2934 of 2004, 3142 of 2004, 3222 of 2004, 3239 of 2004, 3537
of 2004, 3539 of 2004, 4428 of 2004, 4430 of 2004, 4481 of
2004, 4901 of 2004, 4903 of 2004, 4912 of 2004, 5771 of
2004, 5819 of 2004, 7525 of 2004, 7608 of 2004, 13392 of
2004, 25916 of 2004, 27754 of 2004,
21748 of 2005
AND
W.V.M.P.No.2067 of 2006
W.P.No.38990 of 2002:
1. Union of India,
The Chief Postmaster General
Tamil Nadu Circle
Chennai 2
2. The Senior Superintendent of Post Offices
Chennai City South Division
Chennai. ..Petitioners
Vs
1. The Central Administrative Tribunal
City Civil Court Buildings
Chennai 104.
2. M.Nallavan ..Respondents
W.P.No.38990 of 2002 has been filed under Article 226
of the Constitution of India, praying to issue a Writ of
Certiorari to call for the records in O.A.No.1131 of 2001 on
the file of the Central Administrative Tribunal, Madras and
quash the order dated 28.3.2002.
===============================================================================
For petitioners in all the W.Ps. :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.V.T.Gopalan, Addl.Solilcitor General for M/s.S.Yashwanth, M.Devadoss,
M.Dhamodharan, A.Rajendran, G.Nanmaran, K.L.Nandakumar, Sudharshan Sundar,
Sunita Kumari, P.Chandrasekaran & K.Kannan, all Central Govt.Standing Counsel
===============================================================================
For R.3 & R7 in WP.10059/2003, For R2, R3, R5, R8, R9, R11 to R42 in WP.9996/03
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.Vijay Narayanan, S.C. for M/s.R.Parthiban
===============================================================================
For R.1 in W.P.2567/2004, For R.1 in WP.3004/2004 For R.1 to R.4, R.7 to 21 in
WP.4172/2004, For R.1 in WP.3003/2004, For R.1 in 2762/2004, For R.3 to R6,
R8 to 10 & 15 in WP.6424/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.Vijay Narayanan, S.C. for M/s.Karthikmukundan
===============================================================================
For R.1 in W.P.34623/2003 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Ms.R.Vaigai
===============================================================================
For R.1 in W.P.30188/2003, For R.2 in WP.11367/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.P.Rajendran
===============================================================================
For R.1 in WP.4163/2004, For R.1 in WP.3810/2004, For R.1 in WP.4940/2004,
For R.2 in WP.38990/2002, For R.1 in WP.4986/2004, For R.2 in WP.22944/2004,
For R.2 in WP.2832 to 2835/2003 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.R.Malaichamy
===============================================================================
For R.1 in WP.2711/2004, WP.3766/2004, R.1 in W.P.3766/2004, for R.1 in
WP.4164/2004, For R.1 in WP.6369/2004, For R1, R.2, R.7, R11 & R.13 to R.16 in
WP.6424/2004, For R.2 in WP.21433/2004, for R.5 & R6 in WP.4172/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
No appearance
===============================================================================
For R.1 & R.2 in WP.4986/2004 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.V.Vijayshankar
===============================================================================
For R.1 in W.P.19967/2005 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.A.Arokiadoss
===============================================================================
For R.2 to R.22 in W.P.2832/2003 :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr.M.Radhakrishnan
===============================================================================
COMMON ORDER
DHARMARAO ELIPE, J.
Since all the matters are inextricably connected with
each other, they are heard together and disposed of by this
common order.
2. The applicants before the Tribunal, who are the
respondents herein, are all the dependents of Group-C and
Group-D Staff of the Postal Department, who died in harness
or retired voluntarily on medical grounds and they all have
been approved for appointment on compassionate grounds in
Group-C and Group-D posts. They all are working in various
leave vacancies and short term vacancies. Since number of
vacancies are lying vacant, their services are being
utililzed for leave vacancies and thus they are serving
without any break in service. The applicants were awaiting
appointment in regular posts and were also imparted clerical
training by the Department itself. After the judgment of
the Apex Court in UMESH KUMAR NAGPAL vs. STATE OF HARYANA
[(1994) 4 SCC 138], fixing the number of vacancies to be
filled up by compassionate ground appointment as 5%, the
Chief Post Master General, Tamil Nadu circle, issued a
letter on 28.5.2001, seeking willingness in writing for
consideration for appointment on compassionate grounds by
other Ministries/Department from the candidates approved for
compassionate appointment, who could not be given employment
in the petitioner Department since they can also be absorbed
in other Government Departments. Accordingly, all the
applicants have submitted their willingness giving a choice
of departments in which they prefer to be appointed on
regular basis.
3. While things stood thus, the Ministry of
Communications, Union of India, by the orders dated
25.7.2001 and 4.1.2002, impugned before the Tribunal, has
taken a decision that any maintenance of the waiting list of
approved candidates for compassionate appointment should be
discontinued immediately and since the waiting list has been
disposed, this may cause hardship to the approved candidates
and in consideration of these aspects, a decision was taken
to consider such wait listed candidates for vacancies in the
post of Extra Departmental Staff. Based on the said letter,
the Chief Post Master General, Tamil Nadu Circle, has issued
a letter on 6.8.2001 to various Post Masters seeking a list
of vacancies in the Extra Departmental Staff. Aggrieved,
the applicants have filed a batch of Original Applications
before the Tribunal praying to set aside the letter dated
25.7.2001 of the Ministry of Communications, Union of India
and to direct the Department to appoint the applicants as
Postal Assistants within a time limit.
4. The writ petitioners/Department filed a common
counter before the Tribunal stating that the compassionate
appointment cases are considered by the Circle Selection
Committee, constituted in accordance with instructions of
Directorate's Letter No.24-269/87-SPB 1 dated 24.9.1989 on
merits; that as per the scheme of compassionate appointment
circulated by the Department of Personnel & Training OM
No.14014/6/94-Estt (D) dated 9.10.1998, it has been clearly
mentioned at para 7(f) that if sufficient vacancies are not
available in any particular office to accommodate the
persons in the waiting list for compassionate appointment,
it is open to the administrative Ministry/Department/Office
to take up the matter with other
Ministries/Departments/Offices of the Government of India to
provide at an early date appointment on compassionate
grounds to those in the waiting list; the Supreme Court has
ruled in the cases of HIMACHAL ROAD TRANSPORT CORPORATION
vs. DINESH KUMAR [JT 1996(5) SC 319] and HINDUSTAN
AERONAUTICS LIMITED vs. SMT.A.RADHIKA THIRUMALAI [JT 1996
(9) SC 197] that appointment on compassionate grounds can be
made only if a vacancy is available for that purpose.
5. It is further submitted that by OM.No.14014/23/99-
Estt(d) dated 3.12.1999, it was further clarified by
Department of Personnel and Training that the Committee for
considering a request for appointment on compassionate
ground should also take into account the position regarding
availability of vacancy for such appointment for a really
deserving case and only if vacancy meant for appointment on
compassionate grounds are available within a year, that too
within the ceiling of 5% mentioned, such cases should be
approved; that the quota for compassionate appointment was
reduced to 5% as per the decision of the Government of India
communicated in Department of Posts letter No.24-170/94-SPB
I dated 11.12.1995 with the result number of candidates
selected for compassionate appointment are kept in the
waiting list; that the proposal made by the Department of
Posts to the Department of Personnel and Training to relax
the 5% limit in order to accommodate the approved candidates
kept in the waiting list was also turned down by the
Department of Personnel and Training citing the Supreme
Court judgment in U.K.Nagpal's case, cited supra, vide OM
NO.42012/4/2000-Estt (d) dated 24.11.2000; that the
Department of Posts had to discontinue the maintenance of
the waiting list of approved candidates for compassionate
appointment on the basis of Ministry of Personnel D.O.P.&T
OM No.42012/4/2000-Estt (D) dated 24.11.2000 communicated in
DG Posts letter No.24-1/99-SPB-I, dated 8.2.2001.
6. It is further submitted that as on date, all the
approved candidates already in the waiting list were asked
to express their willingness for consideration for
appointment by other Ministries, however, it was
subsequently found by the Nodal Ministry that the chances
for absorption in the Ministries are remote and that there
are also not enough vacancies; that keeping this in view, it
was felt that an opportunity can be given to such wait-
listed candidates who are waiting for some time to be
considered for vacant posts of Grameen Dak Sevaks, if they
are willing and eligible for the post and hence the Director
General (Posts) instructed the Postal circles to offer
Grameen Dak Sevaks vacancies to dependents of regular
employees (Grade C and Grade D) who are already approved for
appointment on compassionate grounds and whose names are
kept in the waiting list for want of regular departmental
vacancies under compassionate appointment quota as on
8.2.2001; that there is no obligation on the part of the
approved candidates kept in the waiting list to accept the
offer of appointment as Grameen Dak Sevaks and therefore,
there is no arbitrariness in the Scheme of offering Grameen
Dak Sevak post to the candidates as their willingness have
been called for and they have not been forced to work as
Gameen Dak Sevaks; that the averment that there are
approximately 1,500 vacancies in the posts of Postal
Assistants cadre is not correct and there are only 505
vacancies in the Postal Assistant cadre for 2001 out of
which 50% is to be filled up under Direct Recruitment; as
appointments have already been made every year upto 1999 in
the 5% quota of the compassionate appointments, and the
candidates considered over and above the prescribed quota
were kept in waiting list anticipating chances of more
vacancies and when the chances are remote, it was decided to
offer them Grameen Dak Sevak posts taking into consideration
the hardship faced by them.
7. Since the Tribunal, has quashed the impugned orders
dated 25.7.2001 and 4.1.2002 and directed the Department to
consider the case of the applicants for regularisation
against the regular vacancies in the grade of Postal
Assistants/Postman/Grade 'C' or Grade 'D' posts as per the
normal rules and orders governing compassionate ground
appointments, the Department has come forward to file these
writ petitions and obtained orders of interim stay.
8. In the meanwhile, there was a proposal to grant one
time relaxation to accommodate all the persons included in
the waiting list . Before a decision could be taken on this
proposal at the Headquarters, the Chief Post Master General,
Tamil Nadu Circle had issued a notification to fill up 146
vacancies by direct recruitment and some of the applicants
have filed O.A.No.693 of 2004 for a direction to forbear the
writ petitioners/Department from making any appointment by
way of direct recruitment and that O.A. was disposed of
directing the department to take a decision on the proposal
pending with the Ministry to grant one time relaxation.
Pursuant to the said order, the Department has rejected the
proposal and initiated action to fill up further 277
vacancies and the same was challenged by filing an
application before the Tribunal. It is also stated that the
persons who had applied much later to some of the
applicants have been considered for such appointment, while
some of the applicants are waiting for appointment in
violation of the instructions issued in the letter dated
29.9.1989. The Tribunal, directed the Department to
consider the case of seniors, to be appointed, if their
juniors are appointed, based on the date of the application.
Aggrieved, some writ petitions have also been filed which
are also the subject matter in this batch of writ petitions.
9. The main core of the argument of the learned
Additional Solicitor General appearing for the writ
petitioners in all these writ petitions is that there are
well laid down rules regarding compassionate appointment
which stipulate that compassionate appointment will be made
to enable the family of the deceased employee to tide over
the financial crisis caused due to the death of the sole
breadwinner, who died leaving the family in penury and
without sufficient means of livelihood and such an
appointment shall be made only on regular basis and that too
if regular vacancy meant for that is available upto the
maximum of 5% of the vacancies and such an appointment is an
exception to general rule that appointment to public office
should be made on the basis of competitive merits and once
it is proved that in spite of the death of the breadwinner,
the family survived and substantial period is over, there is
no need to make appointment on compassionate ground at the
cost of the interests of several others ignoring the mandate
of Art.14 of the Constitution the Tribunal and the applicant
cannot have a choice to choose a post under the
compassionate ground appointments, without considering the
good intention of the writ petitioners to offer Grameen Dak
Sevaks to the applicants, even though the waitlist has been
cancelled, has wrongly allowed the application, which needs
upset by this Court.
10. On the contrary, the learned counsel appearing for
the respondents/applicants before the Tribunal would submit
that the Tribunal has considered all the facts and
circumstances of the case encircling the whole issue and has
correctly arrived at the conclusion to allow the
applications filed by the applicants and therefore, all
these writ petitions filed by the State are liable to be
dismissed and would pray to dismiss all the writ petitions.
11. In support of his contentions, the learned
Additional Solicitor General of India would cite the
following decisions:
1. HINDUSTAN AERONAUTICS LTD. vs. A.RADHIKA
THIRUMALAI [(1996) 6 SCC 394];
2. STATE OF J&K AND OTHERS vs. SAJAD AHMED MIR
[(2006) 5 SCC 766] and
3. UNION BANK OF INDIA AND OTHERS vs.
M.T.LATHEESH [(2006) 7 SCC 350].
12. There is no quarrel with regard to the propositions
laid down therein by the Apex Court. But, in all these
matters, the applicants have crossed the stage, which is the
subject matter in all the above cited judgments in the sense
that all the applicants were selected and approved for a
posting on compassionate ground by a duly constituted
Selection Committee as per the procedure laid down and they
were also provided with necessary training by the Department
at its expenses in their training institutes and employed
them against leave vacancies and most of the applicants are
in employment continuously. Thus, the applicants in these
cases are not seeking compassionate appointment so as to
apply the norms prescribed by the Apex Court in the above
cited judgments, but all these applicants are seeking
regularization of their appointments pursuant to their
selection by the duly constituted Selection Committee and
still they continue in their services and therefore, it
cannot be said that these applicants are still in waiting
list. Therefore, these cases cannot, in no way, be compared
with the above cited cases and therefore, the ratio laid
down in the above cases by the learned Additional Solicitor
General does not come to the rescue of the case of the
Department/petitioners.
13. Admittedly, the Post of Grameena Dak Sevak is not a
civil post. As could be seen from Endt.No.B5/1-1/Rlgs,
dated 18.7.2002 issued by the Senior Superintendent of Post
Offices, Madurai Division, Madurai, Grameena Dak Seveaks
cannot be treated as Central Government Employees. Since
all the applicants were already offered appointments and
while circulating their candidature for appointment against
leave vacancies, the Department had indicated that their
services would be regularised against future vacancies, they
were under legitimate expectation that their services would
be regularised in future course of action since they were
already held to be suitable and qualified for such posts by
the duly constituted Selection Committee. Therefore, as has
been pleaded on the part of the applicants, they would have
definitely given up all their attempts to pursue other
options available for securing employment and by this time,
most of the applicants might have even been over-aged to
pursue any further post. Further, having allowed the
applicants to work for a number of years with the fond hope
of getting their posts regularized, now the Department
offers them a non-civil post like Grameena Dak Sevak lest to
vacate the post now they are occupying, which cannot at all
be appreciated. As has been rightly observed by the
Tribunal, the entire approach and the action of the
Department to offer the post of Grameena Dak Sevak to the
applicants is without any basis since the same is not at all
covered by the compassionate appointment.'
14. As has already been stated supra, all the
applicants have been selected by a duly constituted
Selection Committee and after after affording them the
necessary training, they were listed for regularization and
their services were also utilized against leave/short term
vacancies. Therefore, it cannot be said that the applicants
are in waiting list for compassionate ground appointment,
which stage they have already crossed.
15. Pursuant to our direction to file a statement
showing as to how many approved candidates for the post of
postman etc. are waiting for appointment and how many were
absorbed in regular vacancies between the period 1989 and
2001 and also to furnish the details regarding the
recruitment conducted between 1989 and 2001 and how many
regular vacancies have been filled up during the said
recruitment, the writ petitioners have filed a statement
stating that of the 622 candidates approved for
compassionate appointment in Tamil Nadu Circle, 89
candidates have been appointed as Grameena Dak Sevaks and
the remaining 533 candidate who have been offered Grameena
Dak Sevaks posts have not come forward to accept the same
and have chosen to seek legal remedy for compassionate
appointment before the Court and since there are no
vacancies under 5% quota for compassionate appointment,
waiting list has been abolished by the Government and the
wait listed candidates are eligible for Grameena Dak Sevak
posts according to their willingness and eligibility as on
date; that apart from them, 600 fresh applications from the
year 2000 to 2005 have been received from the Units/Regions
of Tamil Nadu Circle seeking compassionate appointment and
these fresh applications have been processed and kept ready
for submission to the Circle Relaxation Committee, but
Circle Relaxation Committee could not be convened due to the
matter being subjudice before the Court.
16. For the said note submitted by the Department, a
strong and forcible reply note has been submitted by the
respondents/applicants stating that the Department has
omitted to indicate the number of direct recruitment
vacancies sought to be filled up for the year 2006 in Postal
Assistant/Sorting Assistant category and the number of
direct recruitment vacancies arising year wise is not total
number of direct recruitment vacancies but denotes only
1/3rd of the same, since there is a ban on direct
recruitment from the year 2000. Since 5% quota has to be
calculated on the basis of the total direct recruitment
vacancies arising for that year and not on the reduced
number of vacancies after applying the ban, the number of
direct recruitment vacancies arising year wise as shown by
the Department should be multiplied by three to arrive at
the total number of direct recruitment vacancies for that
year.
17. For the sake of convenience and better
appreciation, the details furnished by the petitioners and
the respondents are extracted in tabular columns below post-
wise
(a) Postal Assistants/Sorting Assistants:
Details as furnished by the Department Details furnished
by the
respondents
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Year No.of No.of No.of No.of No.of No.of
vacancies vacancie persons candidatvacancie vacancie
under s under appointed es s under s for
Direct 5% quota under waiting direct compassi
Recruitme compassio for recruit- onate
nt nate compassi ment appointm
(Regular ground in o-nate (Regular ents 5%
vacancies 12% quota appoint-vacancie of
) upto 1994 ment s) regular
and 5% before vacancie
quota applying s
from 1995 ban
-------------------------------------------------------------
2000-01 160 8 -- -- 480 24
2002 160 8 -- -- 480 24
2003 120 6 -- -- 360 18
2004 60 3 -- -- 180 9
2005 320 16 -- -- 960 48
2006 235 12 -- -- 705 35
TOTAL 1055 53 -- -- 3165 158
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(b) Postman/Mail Guard
Details as furnished by the Department Details furnished
by the
respondents
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Year No.of No.of No.of No.of No.of No.of
vacancies vacancie persons candidatvacancie vacancie
under s under appointed es s under s for
Direct 5% quota under waiting direct compassi
Recruitme compassio for recruit- onate
nt nate compassi ment appointm
(Regular ground in o-nate (Regular ents 5%
vacancies 12% quota appoint-vacancie of
) upto 1994 ment s) regular
and 5% before vacancie
quota applying s
from 1995 ban
-------------------------------------------------------------
2000-01 -- -- -- -- -- --
2002 40 2 -- -- 120 6
2003 60 3 -- -- 180 9
2004 40 2 -- -- 120 6
2005 120 6 -- -- 360 18
TOTAL 260 13 -- -- 780 39
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(c) Group D/Mailman:
Details as furnished by the Department Details furnished
by the
respondents
-------------------------------------------------------------
Year No.of No.of No.of No.of No.of No.of
vacancies vacancie persons candidatvacancie vacancie
under s under appointed es s under s for
Direct 5% quota under waiting direct compassi
Recruitme compassio for recruit- onate
nt nate compassi ment appointm
(Regular ground in o-nate (Regular ents 5%
vacancies 12% quota appoint-vacancie of
) upto 1994 ment s) regular
and 5% before vacancie
quota applying s
from 1995 ban
-------------------------------------------------------------
2000-01 80 4 -- -- 240 12
2002 40 2 -- -- 120 6
2003 40 2 -- -- 120 6
2004 20 1 -- -- 60 3
2005 160 8 -- -- 480 24
TOTAL 340 17 -- -- 1020 51
-------------------------------------------------------------
18. Thus, from the note submitted by the Department and
the reply note submitted by the respondents/applicants we
are able to understand that there are sufficient number of
vacancies in the Department to absorb the applicants into
the services of the Department.
19. The Tribunal, has considered all the facts and
circumstances of the case in their proper perspective,
applying the correct proposition of law on the subject and
has arrived at a correct conclusion to direct the Department
to consider the applicants for regularisation against
regular vacancies in which we are unable to find any
illegality or perversity in approach calling for our
interference under Article 226 of the Constitution.
Therefore, all these writ petitions fail and they are liable
to be dismissed.
In the result, all the writ petitions are dismissed
confirming the orders passed by the Tribunal. The
petitioners are directed to regularise the services of the
applicants before the Tribunal against regular vacancies in
the grade of Postal Assistants/Postman/Grade-D posts as per
the normal rules and orders governing compassionate ground
appointments within three months from the date of receipt of
a copy of this order.
No costs. Consequently, all the connected Miscellaneous
Petitions are closed.
Rao
To
The Registrar,
Central Administrative Tribunal,
Chennai.
[PRV/10635]
