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2020 DIGILAW 86 (ORI)

Devi Prasad Panda v. Union of India

2020-03-17

B.R.SARANGI, S.K.PANIGRAHI

body2020
JUDGMENT : S.K. Panigrahi, J. 1. In this writ petition, the petitioner has challenged the validity and legality of the order dated 05.02.2014 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 821 of 2011. 2. The factual conspectus of the matter revolves around denial of compassionate appointment/absorption in PA/SA Cadre or any other regular Departmental posts to the petitioner despite the fact that some other similarly situated persons have been considered for appointment. The father of the petitioner late Mochinath Panda was serving as Ex-Mail Overseer in the office of Assistant Superintendent of Post Office, Bhanjanagar who died of Cancer on 26.01.1998 at the age of 51 leaving behind the dependant widow, the petitioner, one married daughter and two minor sons and two daughters. The widow of the deceased-employee approached opp. party No.3, i.e., the Superintendent of Post Offices, Aska Division, Aska for compassionate appointment of her elder son petitioner. After due verification of the documents and getting satisfied in every respect, the CRC vide Office Memorandum dated 13.9.1999 approved the compassionate appointment of the petitioner relaxing the normal recruitment rules for appointment of Postal Assistant/SA. 3. Despite the willingness of the petitioner and approval by the authority, he was not given appointment in any other Ministry instead the Department, willy nilly, directed him to be absorbed in the post of Gramin Dak Sevak (GDS) on 21.08.2001. The said offer was subject to the condition that once he accepts G.D.S. post, he cannot claim for appointment of any special consideration against the Departmental vacancies. Accordingly, the petitioner, unwillingly, submitted his willingness on 04.09.2001 but later on 06.09.2001, he withdrew the same reiterating his request for appointment against PA/SA or in any other Ministry. 4. Even after his serious plight for getting appointment against PA/SA or any other Ministry, but due to the acute finance difficulties of the family, he was constrained to take up the post of Gramin Dak Sevak on 27.12.2002. Accordingly, the petitioner was appointed as GDS at Golia Brach Post Office under Buguda Sub-post office with effect from 01.08.2003. Later, he was transferred to Dhumuchhai Branch Post Office on 07.04.2008 and he continued as such. 5. Learned counsel for the petitioner submits that several persons who are similarly placed like the petitioner have been appointed in PA/SA Cadre in different Divisions which was duly approved by the CRC. Later, he was transferred to Dhumuchhai Branch Post Office on 07.04.2008 and he continued as such. 5. Learned counsel for the petitioner submits that several persons who are similarly placed like the petitioner have been appointed in PA/SA Cadre in different Divisions which was duly approved by the CRC. The petitioner kept on representing before the authority for absorption in PA/SA, like those of similarly placed persons who have been given such appointment by the Department. But the petitioner was discriminated illegally. 6. Having failed in all counts, the petitioner approached to the Central Administrative Tribunal vide O.A. No. 30 of 2011 which was disposed of vide order dated 01.07.2011 with a direction to the opp. party No. 3, the Superintendent of Post Offices, Aska to consider his case in consultation with the opp. party No. 1/Chief Post Master General, Odisha Circle and do the needful within a period of two months. The petitioner accordingly approached the opp. party No. 3 but his application was turned down on the sole ground that due to non existence of vacancies, he could not be appointed against the PA/SA Cadre. 7. It is also stated by the opp. party Nos. 1 and 3 that as the petitioner has accepted the GDS with a condition that he will not claim absorption in any regular Departmental post, hence his case is different from the other similarly situated persons. The petitioner, being aggrieved, by the order of rejection dated 6.9.2011 passed by the authority, once again approached the Tribunal vide OA No. 821 of 2011. While the matter stood thus, one similarly placed person like the petitioner, named, Manoranjan Pradhan was absorbed in PA/SA Cadre. 8. Having heard learned counsel for the parties and considering the entire facts and circumstances, the Tribunal held that due to the indigent condition of the applicant's family, the CRC recommended his case but due to non-availability of vacancies in regular Departmental Cadre, the authority has taken care to provide him employment and he willingly accepted to be absorbed in GDS post. It was further submitted by the opp. parties that after long lapse of time, the claim of the petitioner against the very undertaking provided by him at the time of appointment citing the example of other similarly situated employee cannot be accepted to unsettle the settled position and accordingly the O.A., was dismissed. It was further submitted by the opp. parties that after long lapse of time, the claim of the petitioner against the very undertaking provided by him at the time of appointment citing the example of other similarly situated employee cannot be accepted to unsettle the settled position and accordingly the O.A., was dismissed. The Apex Court in Jivanlal v. Pravin Krishna, Principal Secretary and others (2016) 15 SCC 747 held that ".....there can't be any pick and choose policy, it would certainly lead to corruption". 9. Having regard to the submissions made by the parties, this Court is of the considered opinion that action of the opp. parties clearly smacks discrimination against the petitioner, since many of the similarly situated persons have been appointed in PA/SA cadre in the Postal Department. Since the Department denied him to absorb in PA/SA cadre, he was constrained to accept GDS to support his distress family after the untimely death of his father. The petitioner, time and again, ventilated his grievance - through representations to the authority seeking his absorption as PA/SA. The petitioner is eligible from all counts for appointment of PA/SA cadre which have been approved for so many similarly situated persons. Hence, precluding the petitioner from similar opportunity of appointment would be against the canon of equal opportunity in the matter of appointment and is hit by Article 16 (1) and (2) of the Constitution of India. 10. The State action cannot be discriminatory. Hence, the findings of the Tribunal is bereft of proper appreciation of law and improper understanding of facts. Even though the case of compassionate appointment cannot be said to be a case of positive discrimination in terms of Article-14 of the Constitution of India, but in the instant case, the question of parity is writ large and the petitioner's claim on parity with similarly situated persons is not un-warranted. The alleged discrimination by the authority in a negative manner is illegal which has escaped the attention of the Tribunal. 11. In a similar case, this Court vide order dated 28.09.2012 has passed an order in W.P.(C) No. 12969 of 2004, wherein it has been stated that: XXX XXX XXX If there was no post in the P.A. Cadre, it is not known as to how Sri Umesh Chandra Pattnaik could be appointed in P.A. Cadre at a later date. 11. In a similar case, this Court vide order dated 28.09.2012 has passed an order in W.P.(C) No. 12969 of 2004, wherein it has been stated that: XXX XXX XXX If there was no post in the P.A. Cadre, it is not known as to how Sri Umesh Chandra Pattnaik could be appointed in P.A. Cadre at a later date. Moreover, merely because the present petitioner-Manoranjan Pradhan expressed his willingness to work as GDS on the ground that no post is available in P.A. cadre, he cannot be discriminated. We, therefore, disposed of this Misc. Case directing the opposite parties to consider the claim of the present petitioner Manoranjan Pradhan for appointment against P.A. Cadre as has been done in the case of Umesh Chandra Pattnaik. This exercise shall be completed within three months from the date of production of certified copy of this order by the petitioner." 12. In view of the above discussion, this Court is of the view that the petitioner's case is a fit case for appointment in PA/SA cadre or any other regular Departmental post similar to this post against which so-many similarly situated persons have been appointed. 13. Accordingly, this Court sets aside the order dated 05.02.2014 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 821 of 2011 and the opp. parties are directed to appoint the petitioner in PA/SA cadre or any other regular posts inside the Civil Services of Union within two months from today. The writ petition is, accordingly, disposed of. No order as to cost.