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2008 DIGILAW 327 (PAT)

Union Of India v. Sunil Paswan

2008-02-14

BARIN GHOSH, RAJESH BALIA

body2008
Judgment 1. Service LawCompassionate appointmentis offered as an exception to the general rule of equality in the matter of opportunities of employment under Article 16 of the Constitution of India in the matter of civil employment is to ward off immediate necessity having arisen on the death of a bread earner of the family this necessity does not continue indefinitely so as to postpone the appointment on compassionate ground indefinitely-compassionate appointment is an exception to general rule under Article 16 of the Constitution if it is given within a reasonable time and not to be kept in abeyance for unduly long period by which the immediate necessity of providing succour ceases to existinstantly, compassionate appointment of a minor ward postponed for consideration until two years of attainment of his majoritythere cannot be any misplaced sympathy in which application moved after long period to issue a mandamus to compel the employer to consider such application time and again order of Tribunal set aside as petitioner had clearly made out a case that he was, in the first instance, not eligible to give an application, and when subsequently gave application supported with school leaving certificate, said certificate found as suspiciousTribunal erred in successive consideration of appointment on compassionate ground having noticed this delay in application and suspicious certificate. (Paras 17 and 21) Order Heard learned counsel for the parties. 2. This petition is directed against the order of the Central Administrative Tribunal, Patna Bench, Patna, dated 24th March, 2006, and relates to a matter wherein the respondent seeks an appointment on compassionate ground on account of death of his father who died in 1980 in harness. After death of the applicants father, applicants mother was given a compassionate appointment. The applicant was minor at that time. However, within a short period after compassionate appointment was given to the widow of deceased employee, Hirwa, she too died in 1982. According to the applicant he made his first application on 5.7.2000 in which he has made a reference to earlier representation in 1998. 3. The petitioner had submitted alongwith his application for appointment the certificate of his School leaving dated 2.5.2000 showing that the applicant has passed Vlth Standard and he has lett School on 31st December, 1988 on completion of his studies. He was shown to have been admitted to School on 25.2.1987. 3. The petitioner had submitted alongwith his application for appointment the certificate of his School leaving dated 2.5.2000 showing that the applicant has passed Vlth Standard and he has lett School on 31st December, 1988 on completion of his studies. He was shown to have been admitted to School on 25.2.1987. In the certificate date of birth of the applicant was stated to be 10th October, 1977. Since the application did not fructify in any appointment, the applicant moved O.A No. 733 of 2002 which came to be decided on 23rd September, 2002 by the Tribunal. The Tribunal directed the respondent no. 2, the concerned authority of the Railways, to dispose of the applicants representation dated 12th July, 2002 within a period of three months from the date of receipt/production of a copy of the order of the Tribunal. 4. In pursuance thereof the pending representation of the applicant dated 12th July, 2002 was rejected by pointing out that the applicant does not have the requisite qualification of Vlllth Class for being appointed as Class-IV service. 5. This led to another O.A . application before the Tribunal No. 679 of 2003 dated 6.7.2003 which came to be decided on 25th August, 2003. In the Original Application before the Tribunal, the applicant produced, a certificate dated 31st July, 2002 about passing Vlllth Class and said that he had made another application dated 1.7.2003 which is still pending consideration before the respondents. 6. The Original Application was disposed of with direction to the concerned respondents to look into the matter and dispose of the said representation dated 1.7.2003 in accordance with law within three months. 7. Again the matter was considered by the Divisional Railway Manager, Danapur, and vide order dated 31.12.2003 the same was rejected finding that the applicant attained majority on 10.10.1995 and as per the extant rules the application for compassionate appointment ought to have been made within two years of attaining the majority. The application moved by the applicant on 5.7.2000 is time barred and did not merit consideration. It was also mentioned in the order that the application received on 31st January, 2003 alongwith Xerox copy of the educational certificate of the applicant, mentioning his education qualification as Class-VI passed. The application moved by the applicant on 5.7.2000 is time barred and did not merit consideration. It was also mentioned in the order that the application received on 31st January, 2003 alongwith Xerox copy of the educational certificate of the applicant, mentioning his education qualification as Class-VI passed. Subsequently when he was told that he is ineligible because the minimum eligible qualification for the post is Vlllth pass he has submitted second application on 22.9.2003 alongwith Xerox copy of the judgment dated 25.8.2003 wherein he has stated that he has passed Class-VIII in the year 1992. 8. This aspect of the matter raised suspicion and an enquiry was conducted by the Administration, which revealed that the certificate of Vlllth pass was fake one because the candidate did not study in the Institution. 9. This led to filing of yet another O.A. No. 647 of 2004 before the Tribunal which has been decided by order dated 24th March, 2006 which led to filing of this writ application. 10. Alongwith the Original Application the applicant had submitted a certificate issued by one Mithilesh Kumar Singh dated 23rd April, 2005 that the certificate issued by him on 31st July, 2002 is correct. In counter to this application, the non-applicant, petitioner, had submitted Annexure-Rl, a letter received from the Incharge Headmaster, G.M. School, Kalyanpur, Punpun, stating therein that the educational certificate bearing serial no. 27 was never issued from my School. It is a fake one. This letter was written to the Divisional Railway Manager, Eastern Central Railways, Danapur, in response of the letter received from him dated 16.12.2003. 11. The Tribunal, curiously enough, directed the Headmaster of the concerned School to bring or send the admission register concerned through a teacher or a responsible Staff to the Tribunal on 9.12.2005. It may be noticed here that the certificate about the genuineness of School Leaving Certificate in 1992 was obtained subsequent to filing of Original Application and had not been issued earlier whereas reference to which was already in the rejection order. Be that as it may, the Tribunal recorded that the admission register, as maintained in prescribed format has 20 columns. The name of Sunil Paswan was mentioned at serial no. 124, at page 49 of the register. Be that as it may, the Tribunal recorded that the admission register, as maintained in prescribed format has 20 columns. The name of Sunil Paswan was mentioned at serial no. 124, at page 49 of the register. It is indicated in column 14 that the applicant had taken admission in Class-VII on 2.6.1989 and there is also an entry in column 20 "27/31.7.02". It also stated that, on inviting attention to Annexure-R, Sri Mithilesh Kumar Singh stated that some person had come for making enquiry. He stated that he wrote the said letter on dictation of the person who had come to conduct the enquiry. Acting on that basis the Original Application was disposed of with direction to the respondent to consider once again the case of the applicant for compassionate appointment. In case the applicant was not found fit for grant of compassionate appointment, the reasoned and speaking order be passed within a period of three months from the date of receipt/production of a copy of this order. 12. This was ipsi dixit statement of Mithilesh Kumar Singh. 13. From the perusal of the record and the order, which was under challenge before the Tribunal, it is pertinent that the Tribunal has declined to consider and has ignored the reason given in the application as given in the rejection Order dated 31.12.2003. The first reason given in the order was that the application for compassionate appointment has been made after expiry of the maximum period within which application should be made. On the admitted facts the petitioner would have attained the age of majority on 10.10.1995. The application, which, according to the petitioner, was moved on 5.7.2000 was belated by at least three years. Even accepting the case of the applicant that he made first application in 1998 was also belated by one year. 14. As the application on undisputed ground has to be made within two years of attaining majority where the ward of deceased Government servant seeking compassionate appointment was minor at the time of death of the incumbent. This alone was sufficient to fore-close the claim and no further enquiry into the matter needed to be made. 15. The law is also well settled that if an order is founded on two grounds, independent to each other, and can be sustained on any one ground, failure of one ground will not vitiate the order. 16. This alone was sufficient to fore-close the claim and no further enquiry into the matter needed to be made. 15. The law is also well settled that if an order is founded on two grounds, independent to each other, and can be sustained on any one ground, failure of one ground will not vitiate the order. 16. Tribunal has not applied its mind to the reason given in the first order about non-consideration of the application of the applicant. 17. There is another rationale behind it, namely, that the compassionate appointment is offered as an exception to the general rule of equality in the matter of opportunities of employment under Article 16 of the Constitution of India in the matter of civil employment is to ward oft immediate necessity having arisen on the death of a bread earner of the family. This necessity does not continue indefinitely so as to postpone the appointment on compassionate ground indefinitely. The compassionate appointment is an exception to general rule under Article 16 of the Constitution of India if it is given within a reasonable time and not to be kept in abeyance for unduly long period by which the immediate necessity of providing suecour ceases to exist. The Government concerned has postponed the consideration for compassionate appointment of a minor ward until two years of attainmen! of majority. There cannot be any misplaced sympathy in which application moved after such period to issue a mandamus to compel the employer to consider such application time and again. 18. Secondly, on the available facts also it does not stand to reason why the statement of Mithilesh Kumar Singh that he wrote the said letter on dictation of the person who had come to conduct enquiry cannot be accepted. Firstly, when the applicant has made its first application in 1998 or 2000 he has annexed his certificate of Vlth only alleging that he is only Vlth pass. Had he really passed Vlllth prior to the date of application, as now alleged, in 1992 in all ordinary course of human conduct he would have stated that he had passed Vlllth, the required qualification. No one ordinarily mentions or produces a certificate of lower qualification than what he actually possess. Had he really passed Vlllth prior to the date of application, as now alleged, in 1992 in all ordinary course of human conduct he would have stated that he had passed Vlllth, the required qualification. No one ordinarily mentions or produces a certificate of lower qualification than what he actually possess. The claim tnat he holds requisite qualification first came on record in 2003, that too after his first representation of 2002 had been rejected on the ground of educational qualification dated January, 2003. He has submitted his qualification only to be Vlth pass. 19. It is only in September, 2003, in a fresh application he has stated, for the first time, that he had passed Vlllth in 1992 and a certificate to that effect was produced from another School than the one from which he has produced the first certificate. While the first certificate clearly spoke about leaving the School because of he has completed the education, the second and subsequent certificate issued in 2002 shows that he has left the School as per the desire of his parents, his guardian. Admittedly in 1992 his father and mother both had expired, how Mithilesh Kumar Singh in 2002 came to know and enter about the desire of guardian and issued the certificate. It is not easy to comprehend. The letter to the Divisional Manager has been written in 2003 in response to the letter received from the Divisional Manager, Danapur. It does not stand to reason that in official correspondence why the Headmaster would give incorrect information without there being any threat or why the Headmaster would oblige. He does not say that he was under pressure to give false certificate. Why Headmaster would be issuing a wrong certificate about all these circumstances without any pressure attributed on the part of the applicant, or to support the applicant, is not discernable. 20. Thus, the finding and acceptance of facts without scrutiny of circumstances cannot be binding without cross-examining the statement of Mithilesh Kumar Singh in Court. 21. Why Headmaster would be issuing a wrong certificate about all these circumstances without any pressure attributed on the part of the applicant, or to support the applicant, is not discernable. 20. Thus, the finding and acceptance of facts without scrutiny of circumstances cannot be binding without cross-examining the statement of Mithilesh Kumar Singh in Court. 21. We are of the opinion that the order of the Tribunal dated 31.12.2003 cannot be sustained for successive consideration of the appointment on compassionate ground when the petitioner had clearly made out a case that he was, in the first instance, not eligible to give an application in 2000 or has made an application in 1998 and when the certificate of School Leaving stating the petitioner to be Vlllth pass has rightly been considered as suspicious. 22. The petition is allowed and the order of the Tribunal is set aside. Original Application is dismissed.