CIVIL WRIT JURISDICTION CASE No.6123 OF 2004
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In the matter of an application under Article 226 of the
Constitution of India.
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SARITA KASHYAP @ KUMARI SARITA KASHYAP,
daughter of late Gopal Prasad Mahtha, C/o Shri Mukul Prasad,
resident of Mohalla- Hamidganj, near Pathar Ki Masjid, P.O.
Daltanganj, District Palamoun.
….. Petitioner.
Versus
1. Secretary to the Govt. of India, Department of Telecom -cum-
Director General Department of Telecom “Sanchar Bhawan”
New Delhi.
2. Chief General Manager, Department of Telecommunication,
Patna.
3. The Registrar, the Central Administrative Tribunal, Patna
Bench, Patna.
……..Respondents.
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For the Petitioner: ` Mr. Vishnudeo Narayan, Advocate.
For the Respondents : Mr. Jawahar Prasad Katna,
Sr. Advocate.
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PRESENT
THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
THE HON’BLE MR. JUSTICE KISHORE KUMAR MANDAL
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S K Katriar &
Kishore K. Mandal, JJ. This writ petition is directed against the following
orders passed by the Central Administrative Tribunal, Patna Bench,
Patna:
(i) Order dated 12.10.2000, passed in O.A. No.411 of 1997
(Kumari Sarita Kashyap Vs. Secretary to Government
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of India and another), whereby the original application
has been rejected, and upheld the decision of the
respondent authorities declining appointment of the
petitioner on compassionate ground,
(ii) Order dated 22.3.2004, passed in R.A. No.4 of 2001 (R)
(Kumari Sarita Kashyap Vs. The Union of India and
others), whereby the review application has been
rejected.
2. According to the writ petition, One Gopal Prasad Mahtha
was engaged by the Department of Telecommunication as daily-rated
employee with effect from 7.8.1977. His services were regularised with
effect from 1.1.1989. He met with an accident on 1.12.1991. He
submitted an application on 10.2.1992, for petitioner‟s appointment on
compassionate ground. The respondent authorities sent their reply dated
26.2.1992 (Annexure-6), to the employee calling upon to furnish proof
of adoption of the petitioner. In the meantime, the authorities constituted
a Medical Board. The employee appeared before the medical board on
14.2.1992, which submitted its report dated 26.2.1992 (Annexure-4),
and declared him handicapped to the extent of 25%. A second Medical
Board was also constituted which submitted its report dated 9.4.1993
(Annexure-5), which stated that the employee incapacity was not
complete, and not of a permanent nature. The Medical Board was,
therefore, of the view that the employee can be continued in service of
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“less laborious character than that which he had been doing….”. The
employee, therefore, continued to function. The respondent authorities
issued order dated 30.7.1993 (Annexure-9), whereby the employee was
granted invalid retirement with effect from 10.7.1993. He would have
reached the age of superannuation on completion of sixty years of age
on 31.7.1993. He died on 5.9.1993. In view of the position that the
respondent authorities did not accede to the employee‟s request for
petitioner‟s appointment on compassionate ground, she moved the
Tribunal by preferring O.A. No.411 of 1997. The petitioner set up her
claim for compassionate appointment on the ground that she is validly
adopted daughter of the employee, and he had been incapacitated by the
accident. The same has been rejected by the impugned order. The
petitioner thereafter filed review application which has also been
rejected by the impugned order.
3. We have perused the materials on record and considered
the submissions of learned counsel for the parties. The most vital aspect
of the matter appears to us is that there was neither any evidence before
the authorities, nor before the Tribunal, nor before us, that the petitioner
was the validly adopted daughter of the employee. Indeed the employee
seems to have submitted his application dated 10.2.1992, requesting the
department to appoint the petitioner on compassionate ground. The
respondent authorities promptly replied by communication dated
26.2.1992 (Annexure-6), calling upon the employee to furnish proof of
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adoption. No material has been brought to the notice of the Tribunal that
she was validly adopted daughter of the employee. The petitioner has
placed before us photo copy of an affidavit alleged to have been sworn
by the employee on 28.7.1993, wherein he stated that he has all through
remained unmarried. He adopted the petitioner, who is the daughter of
his full sister, as his own daughter. We do not find it possible to place
reliance on the affidavit. The employee did not submit any proof of
adoption when he was called upon to do so. No such proof was placed
before the Tribunal. The affidavit has been placed for the first time in
the present proceeding, and is dated 28.7.1993, sworn about six weeks
prior to his death. It appears to be a got-up document for the purpose of
the present proceeding. Furthermore, this is not a forum of facts. It
should have been left to the authorities in the first instance, and may be
by way of appeal before the Tribunal, to determine the issue of fact
whether or not the petitioner was a validly adopted daughter of the
employee. In that view of the matter, the very basis of the petitioner‟s
claim for appointment on compassionate ground in the capacity of a
validly adopted daughter of the employee is absent.
4. The second aspect of the matter is equally important and
operates against the petitioner. The employee seems to have met with an
accident on 1.12.1991, and the materials on record do not suggest that it
was of a grave nature. Both the medical reports on record show that he
had suffered injury to the extent of 25%, and he may be allowed to
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continue in service but with less arduous task than he was engaged on
the date of the accident. Furthermore, the employee seems to have
continued in harness up to 30th of July 1993, the date on which the
authorities issued the order granting invalid retirement to the employee.
He was thus left only one day before his superannuation. Learned
counsel for the petitioner relied on Clause (1) of Appendix-2 of the
Government of India, Department of Personnel and Training, O.M.
No.14014/6/86-Estt. (D), dated the 30th June, 1987, and is reproduced
hereinbelow for the facility of quick reference:
1. To whom applicable:
(a) To a son or daughter or near relative of a
Government servant who dies in harness
including death by which leaving his family in
immediate need of assistance when there is no
other earning member in the family.
(b) In exceptional cases when a Department is
satisfied that the condition of the family is
indigent and is in great distress, the benefit of
compassionate appointment may be extended to
a son/daughter/near relative of a Government
servant retired on medical grounds under Rule
18 of Central Civil Services (Pension) Rules
1972 or corresponding provisions in the Central
Civil Service Regulations before attaining the
age of 55 years. In case of Group „D‟employee
whose normal age of superannuation is 60 years,
compassionate appointment may be considered
where they are retired on medical grounds before
attaining the age of 57 years.
(c) To a son or daughter or near relative of a
Government who dies during the period of
extension in service but not re-employment.
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Clause (1) is obviously inapplicable to the facts and
circumstances of the case and indeed reliance has not been placed on
clause 1(a). The petitioner has really placed reliance on Clause (b) that,
in exceptional cases, appointment on compassionate ground can be
made provided the cause of action for the same on medical ground had
taken place before the employee reached 57 years of age. In the present
case, the employee had retired on medical ground one day, or at best
twenty days, prior to the date he would have reached his age of
superannuation. The petitioner‟s case does not fall under this clause.
5. In the result, there is no merit in this case. The writ
petition is dismissed. In the circumstances of the case, there shall be no
order as to costs.
(S K Katriar, J.)
(Kishore K. Mandal, J.)
Patna High Court, Patna
Dated the 8th day of March, 2010.
S.K.Pathak/ (NAFR)