Joby C.M. v Chief General Manager, Telecom, BSNL Kerala Circle & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** ## **OPCAT.No. 2591 of 2011 (Z)** **--------------------------------------[TA.NO.25/2008 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH]** **.................** **PETITIONER:** **-------------------** **JOBY C.M., H.R.NO.200402469, TELEPHONE MECHANIC, TELEPHONE EXCHANGE, MLAMALA, IDUKKI DISTRICT., RESIDING AT CHULLIYAT HOUSE, KADAVANTHRA P.O., KOCHI - 682 020.** **BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE, ADV. SRI.MILLU DANDAPANI.** **RESPONDENTS:** **------------------------** **1. THE CHIEF GENERAL MANAGER, TELECOM, BHARAT SANCHAR NIGAM LIMITED, KERALA CIRCLE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.** **2. THE PRINCIPAL GENERAL MANAGER, TELECOM, ERNAKULAM,KOCHI-682 016.** **3. THE DIRECTOR GENERAL, BHARAT SANCHAR NIGAM LIMITED, CORPORATE OFFICE, B-102, STATESMAN HOUSE, NEW DELHI - 110 001.** **BY SRI.P.J.PHILIP, S.C, B.S.N.L, SRI.MATHEWS K.PHILIP,S.C.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 02-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(CAT).NO.2591/2011-Z:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **EXT.P.1: COPY OF THE MEMORANDUM OF W.P.(C).29015/2004 DTD. 01/10/2004.** **EXT.P.2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE R.2. IN W.P.(C).29015/2004, DTD. 02/12/2004.** **EXT.P.3: COPY OF THE ORDER IN T.A. 25/2008 DTD. 03/04/2009.** **EXT.P.4: COPY OF THE JUDGMENT IN W.P.(C).11815/2009(S) DTD. 08/04/2009.** **EXT.P.5: COPY OF THE ORDER IN REVIEW APPLICATION NO. 31/2009 IN T.A. NO.25/2008, DTD. 24/09/2009.** **EXT.P.6: COPY OF THE ADDL. AFFIDAVIT FILED BY THE RESPONDENT IN T.A. NO.25/2008.** **EXT.P.7: COPY OF THE ORDER IN T.A. 25/2008, DTD. 11/03/2010.** **EXT.P.8: COPY OF THE ADDITIONAL AFFIDAVIT FILED BY THE RESPONDENT IN T.A. 25/2008.** ## **EXT.P.9: COPY OF THE ORDER IN T.A. NO. 25/2008 DTD. 04/02/2011.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1.A: COPY OF THE LETTER NO.14014/6/94-ESTT(D) DTD. 09/10/1998.** **EXT.R1.B: COPY OF THE ORDER NO.27-8/2003-TE-II(II) DTD. 18/11/2003 ISSUED BY BSNL, NEW DELHI.** **EXT.R1.C: COPY OF THE ORDER NO.268-101/2002-PERS IV DTD. 24/12/2003.** **EXT.R1.D: COPY OF THE LETTER NO.268-101/2002-PERS-IV DTD. 01/10/2002.** **EXT.R1.E: COPY OF THE MINUTES OF HPC HELD ON 18/12/2002.** **EXT.R1.F: COPY OF THE MINUTES OF HPC HELD ON 05/06/2003.** **EXT.R1.G: COPY OF THE LIST OF COMPASSIONATE APPOINTMENT CASE CONSIDERED BY THE CIRCLE H.P.C. ON 18/12/2002, 05/06/2003 AND 09/06/2003.** **//TRUE COPY//** **Prv.** **P.A. TO JUDGE** ## **THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ----------------------------------O.P(CAT).No.2591 of 2011 -----------------------------------Dated this the 2[nd] day of February, 2012 ## **JUDGMENT** ## Thottathil B.Radhakrishnan,J. - 1.This original petition is filed challenging the decision of the Central Administrative Tribunal dismissing the original application filed by the petitioner seeking a direction that he be appointed in Group 'C' category on compassionate appointment. In fact, initially, the application was filed before this Court as a writ petition and on constitution of the Tribunal; it was made over to the Tribunal as a transfer application. - 2.The petitioner’s father died on 13.8.2001. Petitioner applied for appointment on compassionate grounds. It appears that at that point of time, the petitioner could aspire for recruitment to Group 'D' category, as also posts in Group 'C', which included the post of Telecom Operative Assistant (General) [TOA(G)]. OP(CAT).2591/11 2 However, by the time he was offered the appointment on 3.6.2004, BSNL had decided to do away with the aforesaid post in Group 'C' category and bring it down to Group 'D' category. The petitioner was thereby offered appointment in the Group 'D' category and he accepted that appointment order and joined service on 22.6.2004. - 3.The plea raised by the petitioner before the Tribunal was that he is entitled to be appointed as TOA(G), for which post, he was recommended by the High Power Committee which met on 5.6.2003. He says that he ought to have been appointed on compassionate grounds as TOA(G) as on 5.6.2003 which post was then in the Group 'C' category. - 4.It appears that initially, the counter affidavit of the establishment before the Tribunal had created some confusion on the basis of the pleadings. With different materials and affidavits on record, the Tribunal has sifted the grain out of the chaff, in so far as the relevant facts are concerned, and has OP(CAT).2591/11 3 put in crisp terms in paragraph 12 of Ext.P9 order the reason why the applicant cannot succeed. - 5.As per Annexure R8 before the Tribunal, consequent on the formation of BSNL and subsequent absorption, Groups 'C' and 'D' stood in Non-Executive category. The National Council for merging of all the 4 streams of senior TOA into a common cadre decided, among other things, that the only live stream in the senior TOA cadre will be senior TOA(G). The other cadres, including Sr.TOA(P), Sr.TOA(TL) and Sr.TOA(TG) were declared as wasting cadres in BSNL. - 6.After that, BSNL issued the document produced as Annexure A2 before the Tribunal. That communication to all heads of BSNL circles was issued on 24.12.2003 stating, among other things, that compassionate ground appointment in Group 'C' non-technical cadre will be offered only in Sr.TOA(G) cadre and candidates, approved for compassionate ground appointment, who are graduates and possess the relevant OP(CAT).2591/11 4 Diploma/certificate in Computer Applications, will have to undergo an induction training successfully, which will also include proficiency test etc. in terms of the Recruitment Rules of Sr.TOA(G). The candidates approved for compassionate ground appointment, who are graduates but do not possess relevant Diploma/certificate in Computer Applications, will be appointed as Sr.TOA(G), after completion of induction level training. The petitioner has only a Diploma in Civil Engineering, after passing Pre Degree course. This means, he is not a graduate. Going by clause (4) of that communication, all cases where compassionate ground appointments were offered in TOA(G) cadre, prior to the issuance of the letter dated 18.11.2009, need not be reopened. Admittedly, the petitioner was issued appointment letter only on 3.6.2004. - 7.It is in the aforesaid backdrop, the Tribunal assimilated the entire materials on record and pointedly stated as follows: OP(CAT).2591/11 5 “ . . . . . . . . . . . It is an undisputed fact that at the time when the applicant submitted his application for appointment in a Group 'C' cadre he was eligible for consideration for a post of TOA(G) as he fulfilled the required educational qualification. Accordingly the HPC which met on 5.6.2003 approved his case for TOA(G) and 67 candidates including the applicant were wait listed for issuing offer of appointment as and when vacancy arose. By the time Annexure R8 dated 18.11.2003 was received, this compelled the HPC to review their earlier recommendations. The HPC therefore, changed its approval from TOA post to Group 'D' in respect of 25 candidates. These include 3 candidates above the applicant in the waiting list and 22 below him. In respect of those cases which was referred to the 3[rd] respondent for relaxation where the recommendation was for TOA post, the 3[rd] respondent summarily rejected the cases even in respect of those who were senior to the applicant in the waiting list of 67 candidates. In view of this, the respondents cannot be faulted for shifting the approval from Group 'C' to Group 'D' for the applicant as well as many others because of circumstances beyond their control. The applicant was not singled out while changing the appointment from Group 'C' to Group 'D'. So I do not perceive any hostile discrimination to him. Nor do I find any illegality or arbitrariness in the impugned order. . . . . . . . . . .“ 6 OP(CAT).2591/11 - 8.The Tribunal also noted that the applicant had accepted the offer of appointment in Group 'C' and joined service on 22.6.2004. Therefore, in terms of paragraph 14 of the Office Memorandum No.14014/6/94-Estt(D) of the Ministry of Personnel, Public Grievances & Pensions, dated 9.10.1998, the request for change of post cannot be permitted. - 9.Before proceeding further, we may note that as pointed out by the learned Tribunal, the applicant was qualified in the Limited Departmental Competitive Examination for the post of Phone Mechanic on his own merit and is now in Group 'C' category. - 10.Learned senior counsel appearing for the petitioner, relying on the decision of the Apex Court in **State Bank of India & Others** v. **Jaspal Kaur** [(2007) 9 SCC 571] and of this Court in **BSNL** v. **Tittin** [2011(4) KLT 409], argued that the benefit of compassionate employment scheme cannot be denied due to subsequent change of norms. Change of relevant scheme for compassionate appointment cannot have any bearing on the OP(CAT).2591/11 7 entitlement or consideration as on the date of the application, in accordance with the scheme that prevailed at that time. She, therefore, argued that the High Power Committee having found the petitioner to be eligible for being appointed as a Group 'C' recruit in its meeting on 5.6.2003 and because the aforesaid change of category occurred thereafter, the benefit of the recommendation by the HPC should be given to the applicant to provide him appointment in Group 'C' cadre. - 11.Per contra, learned counsel for the department, relying on the judgments of the Apex Court in **Umesh Kumar Nagpal** v. **State of Haryana & Others** [(1994) 4 SCC 138], **State of Rajasthan** v. **Umrao Singh** [(1994) 6 SCC 560] and **Hindustan Aeronautics Ltd.** v. **Smt.A.Radhika Thirumalai** [(1996) 6 SCC 394], argued that when there was no post available in Group 'C' and the category itself was not available, the applicant could not insist for being appointed against that post on the date on which the appointment order was issued; that the eligibility cannot be founded except on the basis of the OP(CAT).2591/11 8 principle that he had to be provided appointment to ensure succor for the family on the face of the unfortunate demise of the Government servant concerned. Learned counsel further pointed out that having regard to the undisputed fact that the applicant accepted the employment in terms of the offer of appointment, he cannot thereafter turn round and make a better choice. 12.For one thing, there is no indefeasible right in any person to be appointed on compassionate grounds. But the well settled principle of law in terms of the decisions afore-referred is that on the pale of Articles 14 and 16 of the Constitution, the eligibility of being considered for compassionate appointment is only within the provisions of any scheme for such appointment, which is not a method of recruitment. The eligibility criteria for being considered for such appointment is only to find out the entitlement to be provided compassionate appointment on the given fact situation. It does not give an indefeasible right to assert as one would be appointed as OP(CAT).2591/11 9 against a particular post or as against a particular cadre. The afore-referred precedents also stand to advise that constitution and comity among the competing rights of the open market candidates languishing for employment and those who have compassionate grounds can be well balanced only by ensuring that compassionate appointments are confined only to category in Group 'D' where direct recruitment is possible. There cannot be any appointment on compassionate ground to any higher category. In fact, appointments on compassionate ground should be on the lower rank of the establishment where direct recruitment is permissible. The aim is only to provide requisite succor and not anything more. 13.In the case in hand, as noticed by the learned Tribunal, the fact situation was that though, at the time when the applicant submitted his application for appointment in Group 'C' category, he was eligible for consideration for a post of TOA (G), by the time the matter had to be renewed in accordance with the policy decision of BSNL, he fell out of the zone of OP(CAT).2591/11 10 consideration for Group 'C'. The Tribunal, in our view, was justified in saying that the establishment cannot be faulted for shifting the appointment from Group 'C' to 'D' for the applicant as well as many others because of circumstances beyond their control. At any rate, as on 3.6.2004, the date on which the offer of appointment was being made, the petitioner could not aspire to be a TOA(G) in the Group 'C' category having regard to the policy decision of the BSNL not to have such category at all in Group 'C'. Not only that, the Tribunal has rightly pointed out that there is no question of the applicant having been singled out while changing the appointment from Group 'C' to 'D'. In our view, the impugned decision of the Tribunal does not warrant interference as there is no hostile discrimination or any illegality or arbitrariness in the impugned order. 14.With the aforesaid, we also need to note that the applicant has no case that he is not provided succor as is envisaged in the compassionate appointment scheme. On the totality of the facts and circumstances, we find no shred of right for the OP(CAT).2591/11 11 applicant to have insisted that he ought to be appointed as against the post in Group 'C', particularly when there is no Group 'C' category at all when he was offered appointment on compassionate grounds. In the result, the writ petition fails. The same is dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. kkb.3/2.