Chief Postmaster General, Kerala Circle, Thiruvananthapuram & Others v. S. Padmanabhan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** **OP (CAT).No.29 OF 2017(Z)** **AGAINST THE ORDER IN OA 180/2015 DATED 09-09-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** **1 THE CHIEF POSTMASTER GENERAL KERALA CIRCLE, THIRUVANANTHAPURAM- 695033** **2 THE SUPERINTENDENT RMS, 'EK' DIVISION, ERNAKULAM, PIN- 682011 3 THE CIRCLE RELAXATION COMMITTEE OFFICE OF THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-685033** **4 THE SECRETARY DEPARTMENT OF POSTS, DAK BHAVAN, NEW DELHI-110001** **BY ADV. SRI.T.V.VINU, CGC** ## **RESPONDENTS:** ## **S PADMANABHAN** **S/O.LATE .P.P. SUNDARAN, AGED 30 YEARS, RESIDING AT C/O. RAZIYA PAYYAPPALLI HOUSE, MAKKAR LANE, CHAKKOLA JN. PERUMANOOR P.O., KOCHI- 682015** **R1 BY ADV. SRI.M.M.MONAYE R1 BY ADV. SRI.M.PAUL VARGHESE R1 BY ADV. SRI.T.KOSHY** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 20.08.2020,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT)29/2017 2 ## **J U D G M E N T** Dated this the 20[th] day of August, 2020 Gopinath P., J: This O.P (CAT) is filed challenging the order dated 09-09-2016 in O.A. No.985/2015. The petitioners are respondents 1 to 4 in that Original Application and the respondent was the applicant. The documents are referred to as they are marked before the Tribunal. 2. The respondent is the son of one P.P. Sundaram who died-in-harness on 03-02-2011. The application of the respondent for appointment on compassionate grounds was considered by the Department. However, the same was rejected principally on the ground that the respondent had not acquired S.S.L.C qualification and therefore he is not eligible to be considered. Communication in this regard was sent to the applicant on 13-01-2012. It was informed that since the respondent could not be considered for the post of 'MTS', an application can be filed for compassionate O.P.(CAT)29/2017 3 appointment of his sister if she is otherwise eligible. The mother of the respondent issued Annexure-A4 communication reiterating the claim for a compassionate appointment for the respondent since her daughter had already been married and was settled in life. The case of the respondent was thereafter considered in November 2012 by the Circle Relaxation Committee (CRC) for appointment to one post of MTS which could be filled up, on the recommendation of the CRC, by candidates who had either failed SSLC examination or had qualifications less than SSLC. Marks or points were awarded to the candidates on various parameters to determine the relative eligibility amongst the candidates. It is the case of the respondent that he had received 44 relative merit points out of 100 in the evaluation by CRC. This is borne out by Annexure-A6 letter. Immediately thereafter the respondent passed the X[th] equivalency certificate examination and on this basis the mother of the respondent requested for reconsideration of the matter through Annexure-A8. O.P.(CAT)29/2017 4 3. It is the case of the respondent that after he passed the qualifying examination, CRC meetings were convened on at least 3 occasions and 23 candidates were recommended for compassionate appointment as MTS. It is his specific case that 17 out of the 23 recommended had less relative merit points than what the respondent had scored when his request was considered by the CRC. This fact is not disputed before us. 4. The Tribunal considered the documents placed on record and found that the consolidated instructions issued by the Department of Personnel and Training (DoP&T) in January 1993 did not envisage a separate categorisation of candidates based on educational qualifications. On the other hand, the scheme envisages the consideration of candidates based on the indigent circumstances. The Tribunal concluded that the assessment of relative merit points was meant to assess the relative indigency of the candidates. The Tribunal therefore held hat the segregation of the candidates into those having qualification and those having O.P.(CAT)29/2017 5 lesser qualifications was clearly against the instructions of the DoP&T. It was found that the case of the respondent for consideration was foreclosed permanently by the CRC which met in 2012 by adopting the procedure of segregating those with qualifications and those without qualifications. On facts, the Tribunal found that in the subsequent years after 2012 several candidates having less relative merit points than the respondent have been recommended for appointment. 5. The Tribunal also referred to the judgment of this Court in **Sherly Idikkula v. Union of India** (2011 KHC 866) and found that if, in a particular year, sufficient vacancies are not available to grant appointment under the compassionate appointment scheme, the same has to be carried forward to the next year. The Tribunal has based on these findings directed a review of the CRC meetings held in November 2012, September/October 2013, April 2014, & December 2014 (Though the date mentioned in the order of the Tribunal in the case of the meetings in 2013 is 30-03- O.P.(CAT)29/2017 6 2013 and 01-11-2013, it is submitted before us this is a typographical error and the actual dates are 30-09-2013 and 01-10-2013). It was directed that if any person having lesser relative merit points has been considered for a compassionate appointment the respondent shall also be considered, if necessary by deducting one vacancy from the vacancies set apart for being filled up through compassionate appointment. The Tribunal has also directed that appropriate ‘seniority’ shall be assigned to the respondent. 6. We have heard Sri. T.V. Vinu, learned Central Government Standing Counsel appearing for the petitioner and Sri. M. Paul Vargheese for the respondent. The learned Central Government Standing Counsel would contend that the respondent had been found ineligible for appointment in the year 2012. There was no guideline or instruction requiring reconsideration of such a candidate in the succeeding year. According to him, the fact that the respondent had obtained the necessary qualification in the O.P.(CAT)29/2017 7 year 2013 was no ground to direct review of the subsequent meetings. He would also point out that none of the persons who were so considered for appointment, were parties to the original application and no order to their prejudice could have been issued. On the other hand, the learned counsel appearing for the respondent would contend that the Tribunal had rightly found that the CRC meetings held in November 2012, September/October 2013, April 2014, December 2014 were liable to be reviewed as it is clear that the procedure adopted was illegal. He would state that the instructions issued in January 2013 by the DoP&T were merely a consolidation of the then existing instructions and those instructions provided for a carry forward to the succeeding year as well. He would also contend that the applicant having secured necessary qualification in 2013, was eligible to be considered for appointment as the earlier rejection (as can be seen from Annexure-A3) was on the sole ground that he was not qualified. He would, therefore, urge that we should not interfere with the order of the Tribunal. O.P.(CAT)29/2017 8 7. Having heard learned counsel on either side and having perused the records we are of the view that the Tribunal was right in concluding that the case of the respondent was not properly considered in the CRC meetings held in November 2012. It is not disputed before us that persons having lesser relative merit points have been considered for compassionate appointment in the succeeding year. This is borne out from by AnnexureA17 series as well. The respondent having acquired the necessary qualification in 2013, and his case having been rejected primarily on account of lack of sufficient educational qualification, it was the duty of the Department to have considered his case based on the acquisition of such qualification. The consolidated instructions issued in January 2013 also show that the case of the respondent could have been carried forward for consideration in the next year. The Central Government Standing Counsel would state that the direction issued by the Tribunal to grant seniority is not tenable. We feel that the direction of the O.P.(CAT)29/2017 9 Tribunal is not to grant seniority in the cadre but only to grant the rightful place in the list of eligible candidates based on the relative merit adjudged in the manner provided and on the basis of relative merit points. The Tribunal could not have intended to grant seniority in any cadre as seniority will count only from the date of appointment. The Tribunal had ultimately directed consideration of the case of the respondent based on the relative merit points awarded to him because persons with lesser merit were recommended for appointment in 2013/2014. We are therefore of the opinion that no interference is called for with the order of the Tribunal. Given our findings as above, we dispose of the O.P (CAT) with the following directions/observations. - (i) The petitioners in this original petition shall consider the case of the respondent for compassionate employment taking into account the relative merit points awarded to him vis-a-vis the candidates recommended for compassionate appointment in the O.P.(CAT)29/2017 10 year 2013 and 2014. While doing so they shall also take into account the fact that the respondent had obtained the necessary qualifications in 2013; - (ii) The direction of the Tribunal to grant seniority to the respondent is not to be interpreted as a direction to grant seniority in any cadre to which he might be appointed but only to grant him the position in the list of candidates recommended for appointment based on the relative merit points awarded to him by the CRC in 2012. We make it clear that if the respondent is appointed, he shall not be entitled to claim any benefit (monetary or otherwise) from a date earlier than the date of his actual appointment; - (iii) The case of the respondent for compassionate appointment shall be considered taking into account the circumstances of his family as on the date on the CRC meetings held in 2013 / 2014 and not with reference to the circumstances as on date; - (iv) The respondent shall be entitled to be appointed O.P.(CAT)29/2017 11 against a vacancy set apart for a compassionate appointment either in this year (2020) or the next year (2021) and within the limit of 5% direct recruitment vacancies or such other vacancies which are reserved for appointment under the dying-in-harness scheme. The consideration of the case of the respondent as directed above shall be completed on or before 30-10-2020. In the facts and circumstances of the case, we make no order as to costs. sd/- **A. M. SHAFFIQUE Judge** sd/- **GOPINATH P. Judge** **==> picture [22 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> AMG<br>**----- End of picture text -----**<br> O.P.(CAT)29/2017 12 ## **APPENDIX OF OP (CAT) 29/2017** ## **PETITIONER'S/S EXHIBITS:** **P1** **TRUE COPY OF THE OS NO.180/00985/2015 DATED 7.12.2015 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH** **P2 TRUE COPY OF THE OBJECTION IN O.A NO.985 OF 2015 DATED 11.2.16 FILED BY THE PETITIONERS** **P3 TRUE COPY OF THE REPLY STATEMENT IN OA NO.985 OF 2015 DATED 25.1.2016, FILED BY THE PETITIONERS.** **P4 TRUE COPY OF THE REJOINEDER DATED 10.3.2016 FILED BY THE APPLICANT** **P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 11.5.2016 FILED BY THE PETITIONERS** **P6** **TRUE COPY OF THE ORDER IN OA NO.180/00985/2015 AND CONNECTED CASES, DATED 09.09.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH.** O.P.(CAT)29/2017 13 ## **APPENDIX OF OP (CAT) 181/2017** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA NO.180/00053/2015 DATED 09.01.2016 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FEBRUARY, 2016 FILED BY THE PETITIONERS.** **EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.180/00053/2016 DATED 23.12.2016, OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27.02.2015 IN SLP(CC)NO(S).3558-3595/2015 PASSED BY THE HON'BLE SUPREME COURT.**