w w w . L a w y e r S e r v i c e s . i n

Tapas Malakar v/s The Union of India Represented by the Secretary, Ministry of Communication & Information Technology, Government of India, Central Secretariat, New Delhi & Others

Company & Directors' Information:- TO THE NEW PRIVATE LIMITED [Active] CIN = U72900DL2006PTC235208

Company & Directors' Information:- INDIA INFORMATION TECHNOLOGY LTD [Active] CIN = U74140DL1992PLC048211

Company & Directors' Information:- S M INDIA LTD [Strike Off] CIN = U26942ML1998PLC005541

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- D TECHNOLOGY PRIVATE LIMITED [Active] CIN = U01403MH2015PTC268305

Company & Directors' Information:- THE INFORMATION COMPANY PRIVATE LIMITED [Active] CIN = U72300MH1999PTC118630

Company & Directors' Information:- UNION COMPANY LTD. [Active] CIN = U36900WB1927PLC005621

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- NEW COMMUNICATION TECHNOLOGY PVT LTD [Active] CIN = U31909GJ1989PTC012512

Company & Directors' Information:- NEW INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U36999TN1940PTC001776

Company & Directors' Information:- UNION COMPANY PRIVATE LIMITED [Dissolved] CIN = U99999KA1942PTC000292

    WP(C) No. 556 of 2019

    Decided On, 06 August 2019

    At, High Court of Tripura


    For the Appellant: D.K. Biswas, G.K. Nama, Advocates. For the Respondents: H. Deb, Asst. SG.

Judgment Text

Arindam Lodh, J.


1. By means of filing the present writ petition, the petitioner has prayed for the following reliefs:

(1) Call for the records of the learned Tribunal

(2) Examine the orders of the learned Tribunal and the judgment passed on 01.11.2018 dismissing the O.A. No. 00077 of 2018, and thereafter find it to have been passed without observing the principles of natural justice and maintaining the procedural propriety

(3) And then pass appropriate orders according to law issuing appropriate direction to the authority and the respondents herein; and

(4) Pass any other order/orders as may be deemed fit and proper for ends of justice."

2. Shorn of unnecessary details we propose to refer to the facts relevant to decide this writ petition.

2.1. Due to the untimely death of the father of the petitioner, he submitted an application to provide him with a job on compassionate ground to any post commensurate to his qualifications.

2.2. It has been stated in the writ petition that his father Ranjit Malakar was an employee under the respondent Nos.2, 3 & 4 and he went on pre-mature retirement on medical ground w.e.f. 31.01.2014. Said Ranjit Malakar received invalid pension also. After his retirement, he submitted a prayer for employment of his son (the petitioner herein) to save the family from razing poverty. However, within two years of his retirement, the father of the petitioner died.

2.3 After such death, the petitioner renewed the application submitted by his father to appoint him on compassionate ground. It is the allegation of the petitioner that the respondents did not take any action on that application, and the tailing poverty in the family of the petitioner continued.

2.4. The first prayer of the petitioner for appointment on compassionate ground was submitted on 28.03.2006. At that relevant point of time the requisite qualification for Group-D post under the Postal Department was Class-VIII pass while the present petitioner had studied up to Class-X. Subsequently, though not in time, the application of the petitioner was communicated to the Chief Post Master General, Northeast Circle, Shillong on 28.01.2014 by the Superintendent of Posts, Dharmanagar where his father was posted at the time of obtaining premature retirement.

2.5. The matter was ultimately examined by the Circle Relaxation Committee (CRC) and after careful consideration of the petitioner's case, the said committee rejected the claim of the petitioner for appointment on the ground that the petitioner did not fulfill the qualification criteria required by the Rules.

3. Indisputably, the application for compassionate appointment of the petitioner was kept on tantalizing position for 11 years, and according to the petitioner, the fault is attributable to none other than the department concerned, though, he along with his widow mother were languishing in razing poverty for all those years.

4. Such rejection of the representation of the petitioner for compassionate appointment forced the petitioner to file an application before the Central Administrative Tribunal (CAT) of the appropriate jurisdiction.

5. The learned Tribunal was pleased to admit the application and issue notice to the respondents, but the respondents represented by their learned counsel did not file the written statement inspite of repeated chances being provided by the learned Tribunal.

6. Lastly, the case was fixed for hearing on 20.11.2018, but without any intimation, the Tribunal constituted a circuit Bench at Agartala on 01.11.2018. Accordingly, the case of the petitioner was sent for adjudication at Agartala. The petitioner could not participate in the said hearing on that date as his counsel was not present at Agartala, according to him, he had no information that the Bench had made a schedule at Agartala on that date. However, the learned Tribunal heard the matter and dismissed the case on merit.

7. It is the contention of the petitioner that due to non filing of the written statement inspite of opportunities, the contentions, which, he pleaded in his application remained uncontroverted and the dismissal order passed by the learned Tribunal was not in accordance with law.

8. The learned Tribunal had dismissed the writ petition in the following terms:

"5. In the OA the applicant on his own submitted that the read upto class X, thus, he does not have the requisite qualification for compassionate appointment in MTS. Besides, the object of the compassionate appointment is to enable the destitute family to tide over the financial crisis which it faces at the time of the death of the sole breadwinner. In the case of Umesh Kumar Nagpal v. State of Haryana & Ors, (1994) 4 SCC 138, the Hon'ble Supreme Court held that compassionate appointment cannot be granted after a lapse of a reasonable period and it cannot be claimed and offered whatever the lapse of time and after the crisis is over.

6. In view of the above, we do not find any compelling reason to pass any direction to the respondents in favour of the applicant. Thus, the OA is dismissed having found bereft of merit."

9. While considering the application of the petitioner, learned Tribunal has taken note of the pleas of the applicant that he read up to class-X and as per the new recruitment rules, for appointment to the post of Multi Tasking Staff (MTS) the education qualification is matriculate, however, his case ought to have been considered by the CRC at that relevant time in the light of erstwhile rules where the educational qualification was class-VIII pass.

10. The learned Tribunal also had considered the fact that the applicant did not have the required minimum educational qualification for the post of MTS with reference to the Department of Posts (Multi Tasking Staff) Recruitment Rules, 2010, as the relevant recruitment rules have prescribed matriculation or equivalent as the minimum education qualification for the post of MTS in the Department of Posts and that was the ground for rejecting the claim of the petitioner which was conveyed to him by way of communicated dated 17.09.2015.

11. The dismissal of the application for compassionate appointment by the learned Tribunal prompted the petitioner to file the instant writ petition.

12. Heard Mr. DK Biswas, learned counsel appearing for the petitioner as well as Mr. H Deb, learned Asst. SG appearing for the respondents.

13. Mr. Biswas, learned counsel for the petitioner submitted that the petitioner was not able to represent his case properly as the Tribunal had pre-poned the hearing of the case, at the Circuit Bench at Agartala. The next submission of the learned counsel for the petitioner is that at the time of filing of representation for compassionate appointment, the writ petitioner was having the requisite qualification as he read up to class-X and at that time the prescribed qualification required for consideration for appointment to the post of MTS was class-VIII pass.

14. Mr. Biswas, learned counsel has further submitted that it was only due to the fault of the respondent-Postal Department that the petitioner's representation was kept unmoved for 11 years and for that the petitioner cannot be blamed. The petitioner along with his widow mother has been passing their days with acute hardship and the crisis which they faced after the death of the petitioner's father still survives. As such, the learned counsel has urged this Court to interfere with the order passed by the learned Tribunal and should issue appropriate orders upon the respondents to provide a suitable job on compassionate grounds.

15. On the other hand, Mr. H Deb, learned Asst. SG appearing for the respondents has submitted that the representation of the petitioner for appointment on compassionate ground was duly considered by the authority concerned, even, the matter was placed before the CRC but the CRC found that the petitioner was not having the requisite qualification under the new recruitment rules for filling up the post of MTS and thus rejected the claim of the petitioner for compassionate appointment.

16. Having heard the rival submissions of the learned counsel appearing for the parties, we have given our thoughtful considerations to the order passed by the learned Tribunal.

17. It is the settled proposition of law that the applicant claiming compassionate appointment has no indefeasible right, but, it is a right to be considered. In the event of death of an employee, the policy for compassionate appointment is made to help the family to overcome sudden financial crisis and other eventualities which the dependants may face due to sudden and unexpected death of the sole earning member of the family. However, the discretion always lies with the employer.

18. In the case in hand, it is found that the father of the petitioner namely, Ranjit Malakar had taken premature retirement at his own wisdom, though, it is true, that he died before he attained the prescribed age of retirement. Late Ranjit Malakar, the father of the petitioner also availed the benefit of invalid pension. According to us, this is not the exact situation of providing appointment to his dependant on compassionate ground. The death of the father of the petitioner was not sudden as from the statement made by the petitioner in the petition, it is revealed that he was suffering from illness and out of that illness his father went on premature retirement.

19. Moreover, in providing job on compassionate ground also, the employer has to follow the recruitment rules in regard to qualification. The respondent-Postal Department has categorically taken the plea that the case of the petitioner could not be considered as he did not fulfill the minimum qualification prescribed for appointment to the post of MTS under the recruitment rules, 2010 framed for the said post which prescribes matriculation or equivalent as the minimum educational qualification. According to us, the respondents being the employer, while rejecting the claim of the petitioner for compassionate appointment has not deviated from the established principle of application of the principles of discretionary power vested upon it. In other words, we find no error in the exercise of discretionary jurisdiction of the respondents-Postal Department in rejecting the claim of the petitioner.

20. Lastly, the father of the petitioner, Late Ranjit Malakar died in the year 2009. We have given out anxious thoughts to the submissions of the learned counsel for the petitioner that it is the respondents - Postal Department that took 12 years to take a decision in regard to the appointment of the petitioner on compassionate ground. We are at a loss to understand what prevented the petitioner from approaching the competent court of law of appropriate jurisdiction to ventilate his grievances, if, he found that his representation for appointment was not taken care of by the respondent employer within a reasonable period of time. Why the petitioner waited for long 12 years to agitate his grievances? In our considered view, he preferred to sleep and all on a sudden he woke up from the slumber. A person who is not vigilant of his rights and taken unreasonable time to agitate his grievance is not entitled to get any redress. It is well settled that law leans in favour of those who are alert and vigilant [Ref. State of T.N. v. Seshachalam reported in (2007) 10 SCC 137].

21. Further, in our opinion, the delay of 12 years caused by the petitioner in approaching the court of law for agitating his grievance is not regrettable. The ground taken by him that it was the respondent-Postal Department which was only responsible for such delay, cannot be accepted. Here, we may profitably take note of the decision of the Apex Court rendered in Prabhakar v. Joint Director, Sericulture Department & Anr., rep

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orted in (2015) 15 SCC 1, wherein their Lordships held as under: "38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the court belatedly without any justifiable explanation for bringing the action after a unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities". 22. In furtherance thereof, the reply of such representation which the petitioner made to his employer cannot give rise to a fresh cause of action or revive a stale claim. 23. Keeping in mind the aforesaid principle and the cumulative reading of the facts of the instant case, we are of the considered view that by the passage of time, the claim of the petitioner has become stale, and in the meantime, the crisis also no longer subsists. 24. In the result, we find no cogent reason to interfere with the order passed by the learned Tribunal in OA No. 00077 of 2018, and accordingly, the instant writ petition stands dismissed. However, there shall be no order as to costs.