High Court of KeralaDivision Bench2024-04-11Original petition disposed of; impugned order s...

Agra P. Thankachan v. Union of India and Others

Case / Petition Number:OP (CAT) No.85 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
M.A. Abdul Hakhim
Judgment Date: 2024-04-11
Court Decision / Holding: Direct the first respondent to consider revising the GDS Compassionate Scheme within three months, incorporating disability provisions under the Rights of Persons with Disabilities Act, 2016; set aside the impugned order and dispose the petition with liberty to approach again if the revision is adverse; the original petition stands disposed.
Final Disposition: Original petition disposed of; impugned order set aside; directions issued to revisit and revise the scheme within three months; consider disability provisions under the 2016 Act; liberty to approach again if the revision is adverse.

Parties to the Case

Appellants / Petitioners

Agra P. Thankachan

Respondents

Union of India, represented by the Secretary to the Government of India, Department of Posts, Ministry of Communications, Government of India, New Delhi-110 001
The Chief Postmaster General, Department of Posts, Kerala Circle, Thiruvananthapuram-695 033
The Senior Superintendent of Post Office, Kottayam Division, Kochi-686 033
The Head Post Master, Department of Posts, Vaikom H.O-686 141

Legal Representation & Advocates

Counsels for Petitioners

• Sajith Kumar V.
• Vivek A.V.
• Godwin Joseph
• Aparna Chandran
• Remya Varma
• N.K

Counsels for Respondents

• K.S. Prenjith Kumar, CGC

Case Synopsis & Summary

This matter concerns a compassionate appointment claim under the postal department’s GDS (Gramin Dak Sewak) scheme. The petitioner, Agra P. Thankachan, seeks a compassionate engagement for dependants of a GDS employee who was medically invalidated, arguing that the current scheme (as revised in 2010 and 2017, Annexure A5) only provides for engagement of dependants on the death of a GDS in service (including death by suicide) and does not address claims arising from medical invalidation. The Petitioner asserts that, socioeconomically, dependants of a permanently invalidated GDS are equally vulnerable and should not be treated differently merely because the breadwinner did not die; reliance is placed on the Full Bench CAT decision in OA 220/1998, affirmed by this Court, which emphasises non-discrimination among dependants and the objective of the scheme to ameliorate the family’s plight. The respondents’ counsel counters that the court cannot rewrite a policy and that compassionate appointment is an exceptional, scheme-bound remedy to be interpreted within its four corners, citing Supreme Court judgments and Bank of Baroda v. Baljit Singh. The court, after considering these submissions, notes the historical context and directs the first respondent to revise the scheme within three months, consider disability provisions under the Rights of Persons with Disabilities Act, 2016, and dispose the matter with liberty for further review if the revision is unfavorable. The petition is disposed accordingly.

Provisions of Law Cited

Rights of Persons with Disabilities Act, 2016

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that dependants of medically invalidated GDS employees face acute financial hardship and that the Compassionate Scheme, as revised (2010 and 2017; Annexure A5), does not address claims arising from medical invalidation. Citing the Full Bench judgment in OA 220/1998, affirmed by this Court, the petitioner contends that discriminating against dependants based on death defeats the scheme’s objective of alleviating the family’s burden. The plea is that the economic criteria used to justify exclusion must be reassessed in light of disability rights and humanitarian considerations; the court should interpret the policy to extend relief to medically invalidated cases where appropriate, and direct revisiting and revision by the competent authority.

Contentions of Respondents

The respondents contend that compassionate appointment is not a regular or blanket remedy and cannot be rewoven by judicial fiat. The scheme prescribes the terms and conditions and is to be applied within the four corners of the policy. They rely on judgments of the Supreme Court and on Bank of Baroda v Baljit Singh to argue that the court should not rewrite the scheme, but may consider disability provisions within the statutory framework. They urge that the authority revisit the scheme to reflect its laudable objectives while maintaining policy coherence and the integrity of the scheme.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
OA 220 of 1998 (Full Bench, CAT Ernakulam)	OA 220/1998	Positive	Full Bench CAT decision, affirmed by this Court, cited to support non-discrimination among dependants and the scheme’s objective.
Indian Bank and Others v. Promila and Another	2020 (2) SCC 729	Mentioned Only	Cited by counsel but not expressly applied or distinguished in the judgment.
State of Himachal Pradesh and Another v. Parkash Chand	2019 (4) SCC 285	Mentioned Only	Cited by counsel; no explicit treatment by the court beyond reference.
Bank of Baroda and Others v. Baljit Singh	2023 KHC 6661	Mentioned Only	Cited for argument; court’s decision does not explicitly adopt or distinguish.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA,** ## **1946** **OP (CAT) NO. 85 OF 2021** **AGAINST THE ORDER DATED 26.10.2021 IN OA NO.573 OF 2020 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **PETITIONER/APPLICANT IN OA:** **AGRA P. THANKACHAN, AGED 30 YEARS, D/O.P.P.THANKACHAN, PURATHATTIL HOUSE, UDAYANAPURAM P.O, VAIKOM-686 143.** **BY ADVS. SAJITH KUMAR V. VIVEK A.V. GODWIN JOSEPH APARNA CHANDRAN REMYA VARMA N.K** ## **RESPONDENTS/RESPONDENTS IN OA:** - **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, GOVERNMENT OF INDIA, NEW DELHI-110 001.** - **2 THE CHIEF POSTMASTER GENERAL, DEPARTMENT OF POSTS, KERALA CIRCLE, THIRUVANANTHAPURAM-695 033.** - **3 THE SENIOR SUPERINTENDENT OF POST OFFICER, KOTTAYAM DIVISION, KOCHI-686 033.** - **4 THE HEAD POST MASTER, DEPARTMENT OF POSTS, VAIKOM H.O-686 141.** **BY ADV K.S. PRENJITH KUMAR CGC** ## **O.P. (CAT) No.85 of 2021** **..2..** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P. (CAT) No.85 of 2021** **==> picture [22 x 9] intentionally omitted <==** ## **J U D G M E N T** ## **A. Muhamed Mustaque, J.** This matter raises an important question as to the claim for compassionate appointment by the dependants of the GDS in postal department. We cannot ignore the precarious situation in which the petitioner is placed consequent upon the medical invalidation of her father, who worked as a GDS. He received all benefits as though he had retired from the service on account of medical condition. 2. Originally, in the Postal Department, before 2010, there was a scheme providing ED Post to the dependant of Ed Agent, in case of death/infirmity of an ED Agent. However, that departmental instructions undergone a change and the Department introduced a new scheme called Compassionate Scheme in the year 2010. It was further revised in 2017. Annexure A5 is the present Scheme. This Scheme allows the dependant family members of GDS to claim for engagement as GDS on the death of a GDS while in service, (including death by suicide). It does not state anything relates to the claim for **..4..** ## **O.P. (CAT) No.85 of 2021** appointment by the dependants consequent upon the infirmity of the GDS Agent. 3. Elaborate arguments have been raised at the Bar by the learned counsel for the petitioner Sri.Sajith Kumar placing reliance on the Full Bench judgment of the Central Administrative Tribunal in O.A No.220 of 1998, as affirmed by this Court. He particularly draws our attention to paragraphs 11 and 12 of the judgment and submits that any discrimination against the dependants based on death would defeat the very objective of the Scheme. According to him, the dependants of infirmed GDS Agent is more vulnerable than the dependants of GDS Agent who died while in service. It is stated that such dependants would incur huge medical expenses to cover the treatment of such GDS Agents. Therefore, it is submitted that the dependants of the same class cannot be distinguished merely based on death. It is submitted that if ED Agents are permanently invalidated due to medical condition and are unfit for any other job, their dependants should be considered for engagement as GDS Agents. 4. On the other hand, the learned CGS submits that **..5..** ## **O.P. (CAT) No.85 of 2021** the Court cannot over write a scheme. The Scheme only covers the claim for appointment by the dependants consequent upon the death of GDS Agents. Therefore, any attempt by the Court to rewrite the Scheme would militate against the objectives of the scheme. It is further argued that claim for appointment based on compassionate appointment is not a regular appointment, but is based on a Scheme and the Court will have to consider the claim within the four corners of Scheme. He placed reliance on the judgments of the Apex Court in _**Indian Bank and Others v. Promila and Another [2020 (2) SCC 729], State of Himachal Pradesh and Another v. Parkash Chand [2019 (4) SCC 285] and in Bank of Baroda and Others v. Baljit Singh [2023 KHC 6661].**_ 5. Having adverted to the submissions of the learned counsel on both sides, we note that historically, the claim for appointment by the dependants of invalidated GDS Agents was considered by the Postal Department. These being an executive instruction, we cannot say that whether the original instructions have been superseded or not, as it is not reflected in the subsequent order. Anyway, it has to be presumed that **..6..** ## **O.P. (CAT) No.85 of 2021** when such element is absent in a subsequent order, it has an effect of superseding earlier orders in this regard. Be that as it may, we are now encountered with a situation to consider the claim of appointment by a dependant of a GDS Agent. Regarding the question as to what makes the difference in the case of a death of a permanently invalidated GDS Agent, we are not able to find any distinct element to make them into different group. The object of the GDS Scheme is to ameliorate the pathetic situation of a family who lost the breadwinner. The economic criteria is the consideration for extending such an offer to the dependants. This being a policy, the extent to which policy can differentiate such dependants is a matter to be decided primarily by the authority, who gave instructions. It has to be evaluated from the perspective of the objectives of compassionate appointment; nature and types of invalidation and what are the other criteria that is required to uphold the claims of the medically invalidated GDS Agents. These are all matters which primarily require a consideration by the authority concerned as to whether the claim of medically invalidated GDS Agents can be separated based on any objective criteria **..7..** ## **O.P. (CAT) No.85 of 2021** or not. 6. It is submitted at the Bar that the petitioner is continuing as a substitute and she may be permitted to continue till further decision is taken in this matter. 7. The learned CGC has a case that the petitioner's father made a request to relieve him and accepted all benefits. The learned counsel for the petitioner submits that since no other pay protection was accorded to him to continue to receive a salary, he has to accept the benefits. 8. The compassionate appointment is not a regular method of appointment. It is only an exception to help the family to tide over a financial situation. When employment assistance is offered on compassionate ground, primarily it is for the employer to devise the terms and conditions based on compassionate appointment. In view of the fact that in this matter, no attempt has been made in the subsequent instructions to include the claim of dependants of invalidated GDS Agents for compassionate appointment, it is appropriate that first respondent revisit the scheme keeping its laudable objectives in mind. We. therefore, direct the first respondent to consider the revision of the scheme as above, within a **..8..** ## **O.P. (CAT) No.85 of 2021** period of three months. We reserve the liberty of the petitioner to approach this Court again, in the event, the first respondent turn down such claim of the dependants. In view of the above, we set aside the impugned order, reserving liberty as above for fresh consideration by the first respondent. 9. While, considering the revision of the scheme, the first respondent shall also consider the statutory provisions governing the claim based on disability under the Rights of Person with Disabilities Act, 2016. 10. The claim of the petitioner would depend upon the decision to be taken by the first respondent as above. The original petition stands disposed of. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** **M.A.ABDUL HAKHIM JUDGE** **PR** **..9..** ## **O.P. (CAT) No.85 of 2021** ## **APPENDIX OF OP (CAT) 85/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE ORDER DATED 26.10.2021 IN OA 573/2020 BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. Exhibit P2 A TRUE COPY OF THE ORIGINAL APPLICATION NO.573/2020 DATED 12.11.2020 FILED BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. Annexure A4 TRUE COPY OF THE ORDER DATED 09.10.2018. Annexure A1 TRUE COPY OF THE RELIEVING ORDER NO.H/GDSS/MEDICAL INVALIDATION/VKM DATED 30.11.2016 ISSUED BY THE POSTMASTER, VAIKOM. Annexure A2 TRUE COPY OF THE REPRESENTATION DATED 19.03.2018. Annexure A3 TRUE COPY OF THE ORDER DATED 13.07.2018 IN OA NO.617/2018. Annexure A6 A TRUE COPY OF THE ORDER DATED 29.08.2008 IN OA NO.380/2007. Exhibit P3 A TRUE COPY OF THE INTERIM ORDER DATED 07.04.2021 IN MA NO.724/2020 IN OA 573/2020 BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. Exhibit P4 A TRUE COPY OF THE REPLY STATEMENT DATED 11.06.2021 BY THE RESPONDENTS IN OA 537/2020 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM** **..10..** ## **O.P. (CAT) No.85 of 2021** ## **BENCH.** ## **Exhibit P5** **A TRUE COPY OF THE MA 724/2020 DATED 12.11.2020 FILED BY THE APPLICANT BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** ## **Exhibit P6** **A TRUE COPY OF THE REPLY STATEMENT IN MA 724/2020 DATED 11.06.2021 FILED BY THE RESPONDENTS BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **Annexure R1** **A TRUE COPY OF THE ACQUITTANCE DATED 11.10.2016.** **Exhibit P7** **A TRUE COPY OF THE MA 249/2021 DATED 27.03.2021 ALONG WITH ANNEXURE A7 FILED BY THE APPLICANT BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **Annexure A7** **TRUE COPY OF THE RELEVANT PORTIONS OF NOTIFICATION NO.51/12/GDS/TFR/2021 DATED 02.03.2021.** ## **Exhibit P8** **A TRUE COPY OF THE REPLY STATEMENT IN MA 249/2021 DATED 08.06.2021 ALONG WITH ANNEXURE R2 FILED BY THE RESPONDENTS BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **Annexure R2** **COPY OF THE LETTER NO.17-11/2020GDS DATED 02.03.2021.** **Exhibit P9** **A TRUE COPY OF THE ORDER DATED 08.11.2001 IN OA 220 OF 1998 BY THE FULL BENCH OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** ## **O.P. (CAT) No.85 of 2021** **..11..** **Annexure A5** **TRUE COPY OF THE REVISED SCHEME DATED 30.05.2017.**