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2014 DIGILAW 370 (DEL)

Delhi Transport Corporation v. Rahul Nagar

2014-02-03

DEEPA SHARMA, GITA MITTAL

body2014
Judgment : Gita Mittal, J. (Oral) 1. The writ petitioner assails the order dated 1st April, 2013 passed in OA No.3488 of 2012 by the Central Administrative Tribunal, Principal Bench, New Delhi. 2. The facts giving rise to the instant petition are not disputed and to the extent necessary, are noted hereafter. The respondent is the son of Late Shri Mahipal Singh who died in harness on 10th June, 2001 while working as conductor with the Delhi Transport Corporation (DTC). 3. It appears that Late Shri Mahipal Singh met with an accident on 9th October, 1998 while returning from duty in which his right leg had to be amputated. Thereafter, he was assessed as having 60% disability. Based on this disability, the father of the respondent was retired prematurely on 22nd November, 1999 by the DTC. Late Shri Mahipal Singh challenged his premature retirement by way of WP No. 2765/2000. Unfortunately, he expired on 10th June, 2001 during the pendency of the writ petition and the case was pursued by his son, the present respondent and other legal heirs of Late Shri Mahipal Singh. This writ petition culminated in a judgment dated 6th March, 2002 passed by a Division Bench of this court whereby the termination order dated 22nd November, 1999 was set aside. It was further declared that the father of the respondent would be notionally treated to have taken back into service from the date that the respondents stopped paying full salary to him and he would be treated in continuous employment without break till he expired on 10th June, 2001. 4. It is noteworthy that the heirs of Late Shri Mahipal Singh filed contempt petition being CCP No.510 of 2002 complaining violation of judgment dated 6th March, 2002 by the present petitioner. In this case, CM No.191/2003 was filed. This petition was disposed of by an order passed on 21st January, 2004 wherein the court noted that the heirs of Late Mahipal Singh had not filed an application seeking compassionate employment with the DTC in view of the fact that Smt.Rajesh Devi would have got pension. In this case, CM No.191/2003 was filed. This petition was disposed of by an order passed on 21st January, 2004 wherein the court noted that the heirs of Late Mahipal Singh had not filed an application seeking compassionate employment with the DTC in view of the fact that Smt.Rajesh Devi would have got pension. The court observed that it was open to heirs of Late Mahipal Singh to apply for appointment on compassionate basis and the DTC was mandated to consider the same in accordance with its policy, taking into consideration the fact that it was the fault of the DTC which had resulted in the prolongation of case as it was not earlier disclosed to them that husband of Smt.Rajesh Devi had opted out of the pension scheme. 5. It is obvious therefrom that there was no delay in submitting the application for compassionate employment on the part of Smt.Rajesh Devi in 2005 as noted by this court in the order dated 24th January, 2004. 6. Smt.Rajesh Devi, mother of the respondent thereafter made request to the DTC to give her appointment on compassionate ground for any suitable post keeping in view the dire circumstances of the family. The DTC failed to respond to the same. Finally, on 24th January, 2011, the respondent’s mother made a request to the DTC to appoint the respondent who is the eldest son instead of considering her case for such compassionate appointment. This request was rejected by the DTC by an order dated 11th February, 2011 wherein they simply stated that the case was sent to Headquarters for necessary action which came back with the remark that “your case for employment on compassionate ground is not possible”. This letter was addressed to Smt. Rajesh Devi, widow of Late Shri Mahipal Singh and mother of the respondent. 7. In view of the non-consideration of the request for appointment made by Smt.Rajesh Devi, she was constrained to make the representation dated 24th January, 2011 requesting the compassionate appointment for the present respondent. 8. The respondent’s representation with regard to the DTC’s communication dated 11th February, 2011 was rejected by the petitioner by their order dated 27th March, 2012 simply stating that the case of the respondent on compassionate ground “is not possible”. 9. 8. The respondent’s representation with regard to the DTC’s communication dated 11th February, 2011 was rejected by the petitioner by their order dated 27th March, 2012 simply stating that the case of the respondent on compassionate ground “is not possible”. 9. The respondent before us assailed the rejection orders dated 11th February, 2011 and 22nd March, 2012 by way of OA No.3488/2012 before the Central Administrative Tribunal, Principal Bench, New Delhi. 10. The respondent opposed the application largely complaining that the request of the respondent for compassionate appointment was made after a lapse of about ten years from the date of death of his father and that there is a gap of six years from the last application of his mother. 11. Our attention has also been drawn to the counter affidavit filed by the DTC before the Tribunal. We find that delay was the sole ground on which the petition of the respondent was opposed. 12. The Tribunal has considered the matter and has passed a detailed order dated 1st April, 2013 setting aside the orders dated 11th February, 2011 and 22nd March, 2012. The Tribunal has, thereafter, directed the DTC to re-consider the case of the respondent keeping in view the observations made in its order. 13. While so directing, the Tribunal has reiterated the well settled principle that appointment on compassionate basis is an exception to the rule and meant for immediate relief to the destitute family. The Tribunal has also noted that the compassionate appointment is not a source of recruitment and persons entitled for compassionate appointment cannot be permitted to seek the same on their whims and fancies. 14. The order of the Tribunal records the explanation given by the present respondent to the extent that the family of Late Shri Mahipal Singh was in great shock and dismay in view of the accident and illegal order of termination passed by the DTC. His death on 10th June, 2001 aggravated their misery, financial penury and mental agony. 15. We find by the order dated 6th March, 2002 passed by the High Court it was held that the termination of the services of Late Shri Mahipal Singh was illegal and direction were issued to the DTC to make payment to the family, The heirs of Late Shri Mahipal Singh remained under the bona fide impression that they would be paid pension by the DTC. As no pension was received, they were constrained to move this court by way of Contempt Case No.510 of 2002. It was only in these proceedings that the DTC opted to inform the court that the family of Late Shri Mahipal Singh was not entitled to pension. While disposing of CM No.191 of 2003 in Contempt Case (C) No.513 of 2002, this court recorded on 21st January, 2004 that it would be open to the legal heirs of Mahipal Singh to apply for such compassionate appointment which the DTC was required to consider in terms of policy. The court specifically observed that it was the fault of the DTC which had resulted in prolongation of case as it was not disclosed earlier to the legal heirs that he had opted out of the pension scheme. 16. In the instant case, therefore, no delay is attributable to the respondent or the other heirs of Late Shri Mahipal Singh in making the application for appointment on compassionate basis. It is also pertinent to note that the services of Late Shri Mahipal Singh were illegally terminated on account of his disability and he died during the pendency of his challenge before this court. It was only in 2004 when this court passed the order and permitted his legal heir to approach the DTC by way of the application for compassionate appointment. Even when she made the application pursuant to the directions of this court, the DTC kept the same pending and did not bother to even respond to the same, let alone consider the same favourably or otherwise. It is undisputed that till date, the DTC has not taken a view on the merits of the application made by the respondent’s mother. 17. The respondent has disclosed that on the date of death of his father Late Shri Mahipal Singh, he was minor who attained majority only in the year 2006. After obtaining his graduation degree as well as the requisite licences etc., he made representation to the DTC in the year 2011. The application made by the present respondent is supported by all the other legal heirs including his mother. On the date when he made the application, his mother’s application for compassionate appointment was admittedly pending with the DTC. 18. The application made by the present respondent is supported by all the other legal heirs including his mother. On the date when he made the application, his mother’s application for compassionate appointment was admittedly pending with the DTC. 18. In the given circumstances, the plea for substitution of the respondent made by heirs of Late Shri Mahipal Singh in the pending request for compassionate employment, instead of his mother (another legal heir of Late Mahipal Singh) cannot be considered a delayed one in any circumstance. 19. It may be noted that merely because the family of the deceased was able to survive for certain years certainly cannot be unexceptionally deemed to establish adequancy of means. The adequacy of means is a question of fact, which must be supported by sound material. The Tribunal has noted that the DTC has made no effort at all to ascertain the financial condition of the family of Late Mahipal Singh and has held the action to be unreasonable, irrational & inhuman. We find no ground to differ with the view taken by the Tribunal. 20. The present writ petition is, therefore, dismissed as being devoid of any legal merit. 21. Needless to say, the request of the heirs of Late Shri Mahipal Singh shall not be rejected on grounds of delay and shall be considered on merits. 22. It shall be open for the respondent to place any material deemed necessary before the DTC within two weeks. 23. The petitioner is directed to comply with the directions made by the Tribunal in para 13 of the order within a period of six weeks thereafter and communicate the order which is passed to the respondent upon its passing. Dasti.