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2008 DIGILAW 1070 (CAL)

Matijul Hossain v. UNION OF INDIA

2008-12-17

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
JUDGMENT:- (1). This application was admitted on the 11th of June, 2008 for hearing on affidavits. By our aforesaid order we specifically directed the respondents to file affidavit-in-opposition enclosing the scheme providing compassionate appointment without fail; failing which legal implication would follow. In spite of such direction, no affidavit-in-opposition has been filed, as recorded by the department. (2). Today none appears on behalf of the respondents; hence we take up this matter for final hearing. (3). The short fact leading to filing the present application is stated hereunder : One Sri Abdul Hannan, who was a postman under Salur Sub Post Office in the district of Murshidabad, died in harness on 20th October, 2001. On 23rd October, 2001, Superintendent of Post Office Murshidabad Division asked for furnishing requisite papers for compassionate appointment of the applicant. The matter was not proceeded with, so the petitioner filed an application before the learned Tribunal in 2006, being O.A. 504 of 2006. When this matter was heard finally it was divulged for the first time that his case for compassionate appointment has been considered by a Committee.; namely, Circle Relaxation Committee (in short CRC) wherein, in its meeting held on 21st October 2005, it had been held that the case of the petitioner, along with other candidates who have been waiting for compassionate appointment for long time would be considered in future. In spite of above situation, learned Tribunal did not pass any order; rather gave direction upon the respondents for considering his case in future CRC. Petitioners case is that, thereafter the Chief Post Master General, West Bengal Circle, passed an order on 27th of June 2007. Significantly, in terms of the direction of the learned Tribunal, CRC did not take a decision; rather the Chief Post Master General passed an order on 27th of June 2007 rejecting the claim of the applicant. Therefore, the applicant filed a subsequent application, being O.A. 666 of 2007 on which the impugned judgment and order was passed. Challenging the aforesaid order dated 27th of June 2007 and also the decision of the said CRC held on 21st October 2005. (4). Therefore, the applicant filed a subsequent application, being O.A. 666 of 2007 on which the impugned judgment and order was passed. Challenging the aforesaid order dated 27th of June 2007 and also the decision of the said CRC held on 21st October 2005. (4). As far as the order of CRC on 21st October 2005 is concerned it is not open to be challenged at the present moment in view of the direction given by the learned Tribunal earlier accepting earlier decision impliedly and further giving direction to consider in the future meeting. (5). Now the question remains whether order of the Chief Post Master General dated 27th June 2007 could be examined or not. (6). At the first instance, we are not sure who the Committee is but it is clear that Chief Post Master General was not asked by the learned Tribunal to decide the matter, therefore, on that ground alone the order should be set aside and we do hereby. (7). Next question remains whether the applicant is entitled to get any compassionate appointment or not. (8). It is submitted by Mr. Yamin Ali that decision of the learned Tribunal, rejecting the candidature of his client, is absolutely unacceptable either on fact or in law. (9). We think there is some substance in the submission of Mr. Yamin Ali as this matter was being considered by the department immediately after the death of the employee concerned. The death occurred on 20th of October 2001 and immediately thereafter, as it appears from the record, the applicant did take steps by furnishing documents. It is also clear from the records that appointment on compassionate ground was being considered along with other eligible candidates. In the meeting held on 21st of October 2005 the case of the applicant was considered; meaning thereby, it was neither rejected nor approved. Learned Tribunal directed to take a decision under the Scheme available. We had asked the respondents to furnish the scheme by way of an affidavit but the same has not been supplied. Therefore, we can comfortably draw adverse inference as because had it been produced by the respondents, it would have gone against them. (10). Accordingly earlier direction of the learned Tribunal has not been carried out by the CRC. We had asked the respondents to furnish the scheme by way of an affidavit but the same has not been supplied. Therefore, we can comfortably draw adverse inference as because had it been produced by the respondents, it would have gone against them. (10). Accordingly earlier direction of the learned Tribunal has not been carried out by the CRC. Learned Tribunal had failed to take note of the aforesaid serious lapse; rather axiomatically the decision of the Chief Post Master General, which is impugned, has been accepted to be the decision of CRC which is not permissible under the law as the learned Tribunals desire was to take a decision by CRC and not by any other authority. We, accordingly, set aside the decision of the learned Tribunal. (11). We now direct the CRC, in terms of the earlier direction of the learned Tribunal, to take decision afresh, in accordance with law taking note of the scheme ; namely, O.M. dated 5th May 2003. Delay in this case is not a factor at all by reason of the fact the applicant was waiting for the decision of the CRC and having found no decision from the CRC, the applicant had approached the learned Tribunal earlier. It is absurd to expect that in order to get compassionate appointment; the candidate concerned must be within poverty line all the time. If the condition which has been observed in the judgment and order by the learned Tribunal is to be fulfilled then no one can survive; as, how many days one can live without any employment and without making arrangement for his own sustenance. We do not find any fault on the apart of the applicant to maintain himself on the mercy of his elder brother. This logic is irrational and no reasonable prudent man can put forward this logic to defeat any claim. We have dealt with this observation in this way because learned Tribunal has discussed all these things instead of examining the matter in true perspective. (12). We, therefore, direct the CRC or any other appropriate authority to take a decision afresh, as directed by us. The decision making authority shall not be influenced by the decision and finding of the learned Tribunal, however, and it will take note of the aforesaid situation, as observed by us. (12). We, therefore, direct the CRC or any other appropriate authority to take a decision afresh, as directed by us. The decision making authority shall not be influenced by the decision and finding of the learned Tribunal, however, and it will take note of the aforesaid situation, as observed by us. This shall be done within a period of eight weeks from the date of communication of this order. If for any reason, prayer and claim of the applicant is rejected then there must be a speaking order and such order should be communicated to the applicant within seven days of taking such decision. (13). We once again make it clear the reasoning and finding recorded by the Chief Post Master General is set aside by us since it is a non est. The application is disposed of. There will be no order as to costs.