WPSS/982/2008 of SHANKAR SINGH BORA Vs UNION OF INDIA THROUGH SECRETARY AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (S/S) No. 982 of 2008

Shankar Singh Bora

….Petitioner.

Versus

Union of India through its Secretary, Department of Post, New Delhi and others

…Respondents.

Present : Mr. Rakesh Thapliyal, Advocate for the petitioner. Mr. Shailendra Singh Chauhan, Standing Counsel for the Union of India.

Hon’ble Sudhanshu Dhulia, J. (Oral)

Heard Mr. Rakesh Thapliyal, Advocate for the petitioner and Mr. Shailendra Singh Chauhan, Standing Counsel for the Union of India.

The father of the petitioner was working as Sub Post Master in Post Office Chanoda, Disrict Almora. He died in harness on 4.1.2005 leaving behind the petitioner and his younger brother. The petitioner and his younger brother both were married at the time of death of the petitioner’s father. The petitioner applied for appointment on compassionate grounds as in the postal department there was scheme where such appointment could be made on compassionate ground. In fact the petitioner had also sent certificate issued by the concerned Tehsildar which stated that the entire assets of the petitioner is worth ` 90,000/- only. The first letter received by the petitioner from the respondent department is dated 7.9.2006 by which he has been informed by the office of Chief Post Master General of Uttarakhand Circle that his case will be placed before the Circle Relaxation Committee for consideration as and when approval for vacant Group “C” posts is communicated to this circle by the Screening Committee of Postal Directorate. Subsequently on continuous enquiry being made by the petitioner, he was informed again on 27.2.2008 by the Office of Chief Post Master General, Uttarakhand Circle that his case will be placed before the

Circle Recruitment Committee for consideration as and when approval for vacant Group “C” posts is communicated to this circle by the Screening Committee of Postal Directorate. Thereafter on 11.8.2011 same information was again sent to the petitioner. In other words, the petitioner has been informed all this while that as soon as the post becomes vacant in the circle, he shall be appointed.

Since no appointment was made the petitioner has filed this petition.

The respondent, on the other hand, filed scheme of December 1998 by which such appointments are being made. According to them only on 5 per cent vacant posts such an appointment can be made. Such appointments are examined at circle level and in case such vacancies are available in other circles, appointments are also considered for other circles as well. The case of the respondent though throughout has been that there has been no vacancy for the petitioner so far.

On the other hand, the petitioner has filed document which he has received under the Right to Information Act, whereby certain appointment under the Dying in Harness Rules have been made after 2005. He, particularly, refers to one appointment of Km. Poonam Lewis whose mother died in harness on 23.5.2005 and she was appointed as 20.6.2007. Therefore the case of the petitioner is that the contention of the respondent that there is no vacancy available is incorrect because they have already given an appointment to other candidate (on compassionate ground) on 20.6.2007 as the mother of Km. Poonam Lewis died in harness on 23.5.2005 i.e. after the death of petitioner’s father (The petitioner’s father died on 4.1.2005). This is also the case of Almora (the case of Km. Poonam Lewis) as that of the present petitioner.

The counsel representing the postal department Mr. Shailendra Singh Chauhan, on the other hand, states that the

appointment of Km. Poonam Lewis was on Group “D” post whereas the petitioner wants appointment on Group “C” post. This, however, is not correct as the petitioner has nowhere stated that he wants appointment on Group “C” post alone. Therefore, the contention of the respondent cannot be accepted as it does not appear to be correct. The contention of the respondent that the petitioner has not been appointed, as no vacancy has been communicated so far is also not correct. Moreover, this Court also fails to understand as to what are the parameters on which relative hardship can be measured. No such criteria has been given to the Court. The criteria which has been shown to the Court would not be relevant for the purposes of determining the appointment on compassionate grounds. Moreover, merely because family of the deceased has received certain financial benefits after the death of incumbent is not ground for denying appointment on compassionate ground to his family members, as the two are done on different considerations.

Learned counsel for the petitioner has relied upon Balbir

Kaur and another v. Steel Authority of India Ltd. and others reported in (2000) 6 SCC 493, where in para 13 the Hon’ble Apex Court has stated as under :-

“13. Mr. Bhasme, learned advocate appearing for Steel Authority contended that the Family Benefit Scheme was introduced on 21.11.1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management could avail of the Scheme by depositing the lump sum provident fund and gratuity amount with the Company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr Bhasme

contended that consequently on deposits as above with the management, the employee’s family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such scheme in fact stands at much better footing and much more beneficial to an employee or deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of Family Benefit Scheme by the employees’ union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family – this is rather unfortunate but this is reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation.

Learned counsel for the petitioner has also relied upon Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra and others (2008) 11 SCC 384, where the Hon’ble Apex Court has stated as under :-

“10. The High Court in its judgment had noticed that the scheme which was operative at the relevant point of time was that appointment on compassionate grounds should not be given if the monthly income exceeds Rs. 500. Evidently, the appellant did not fulfil the said criteria. It may be true that in given case, appointment on compassionate grounds cannot be denied only because the dependant of the deceased had been receiving some amount by way of family pension.”

As such, there are no plausible grounds for the respondents for rejecting the candidature of the petitioner for

appointment on compassionate ground. Therefore in the interest of justice, it is directed that respondent no. 3 i.e. Chief Post Master General, Department of Post (Uttarakhand Circle), Dehradun, District Dehradun shall consider the case of the petitioner for appointment on compassionate ground. It is made clear that in case no vacancy is available in Uttarakhand Circle, the same shall be considered for other nearby circle as well. It is hoped and expected that the concerned respondent shall dispose of the representation in true letter and sprits of the law presently applicable in the respondent department. In case, such representation is made the same shall be disposed of as expeditiously as possible but definitely within period of 8 weeks from the date certified copy of this order along with representation is produced before him.

With the above observations, writ petition is disposed of. No order as to costs.

1.8.2011 Avneet

(Sudhanshu Dhulia, J.)