Central Administrative Tribunal - ErnakulamJoby P Varghese vs Lipokao And on 14 September, 2012OA 512 /11

                 CENTRAL ADMINISTRATIVE TRIBUNAL
                          ERNAKULAM BENCH


                            O.A No. 512/2011


              Friday, this the 14th day of September, 2012.

CORAM


HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER


Joby P Varghese,
S/o Ponnachan,
Kollanvilakath, Kaithakode.P.O.
Kollam-691543.                                  -           Applicant

(By Advocate Ms Sadhana Kumari E)

                                     v.

1.   Union of India represented by the
     Secretary, Ministry of Communication,
     Department of Posts, Dak Bhavan,
     New Delhi-110 001.

2.   Chief Post Master General, Kerala Circle,
     Thiruvananthapuram-695 001.

3.   Sr. Superintendent of Post Office,
     Kollam Division, Kollam-691 001.

4.   The Circle Relaxation Committee,
     O/o the Chief Post Master General,
     Kerala Circle, Thiruvananthapuram -
     695 001.                                         -     Respondents


(By Advocate Mr Sunil Jacob Jose, SCGSC)


This application having been finally heard on 11.09.2012, the Tribunal on
14.09.2012 delivered the following:




                                O R D E RHON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBEROA 512 /11This is the case of compassionate appointment. The applicant's

father, who was working as a Post-man, died in a road accident on 1st

August 2005. The mother of the applicant applied for compassionate

appointment for her elder son, vide Annexure A-6 dated 28th of December

2005. Vide Annexure A-11 communication dated 20-06-2006, her request

was turned down on the ground that the family is not in indigent

circumstances. According to the applicant, after the aforesaid rejection

order was communicated, he and his mother visited the respondents

many times and were given the assurance that the case would be

reconsidered (paragraph 8 of the OA). The applicant thereafter on 1

January 2008 renewed the request of his mother for the grant of

compassionate appointment to him. Annexures A-13 and 13 A refers.

This request was again renewed in 2010 vide Annexure A-14 series. The

applicant had also approached certain Central Ministers in this regard.2.    As there has been no positive response, the applicant has moved

this OA seeking the following reliefs:-(i) Declare that the applicant is entitled to compassionate

         appointment.(ii)Call for the records and files pertaining to the letter

         No.Rectt/7-56/05 dated 15.6.2006 of the 2nd respondent and

         quash the letter No.Rectt/7-56/05 dated 15.6.2006 of the 2nd

         respondent.(iii)Call for the records and files pertaining to the letter and quash

         Annexure A-11.(iv)Call for the minutes and records pertaining to the decisions of

         the 4th respondent since 1.8.2005 till date and quash the

         decision on 22.3.2006 in regard to this applicant.(v)Declare that the applicant is entitled to get compassionate

         appointment in the 1st respondent department.OA 512 /11(vi)Direct the respondents to give appointment to the applicant in

       the 1st respondent department, forthwith.(vii)To pass appropriate order or direction which this Hon'ble

       Tribunal finds necessary for the ends of justice, and allow costs

       to this applicant.3.    Respondents have contested the OA. Para 3 and 4 thereof of their

reply succinctly brings out their contention and the same is as under:-"3.    At the outset, it is submitted that the O.A is barred by
        limitation and is liable to be dismissed on the ground of delay.
        The request of the applicant was examined by the Circle
        Relaxation Committee (CRC for short) held on 22.3.2006 but
        was rejected as the family of the applicant was not found to
        be in indigent circumstances to warrant consideration for
        appointment under relaxed standards. The said decision of
        the CRC was communicated to the applicant vide Annexure A-
        11 dated 20.6.2006. The applicant has chosen to approach
        this Tribunal after more than 5 years from the receipt of the
        impugned letter.      It is trite law that belated claims of
        promotion and appointment ought not to be entertained by the
        Court of law. This view has been emphasized by the Hon'ble
        Apex court inM.L.Cecil D'Souza v. Union of India[AIR 1975 SC
        1269]. In this case, the applicant has been sleeping over his
        rights and has now approached the Tribunal seeking a review
        of the decision taken by the CRC more than 5 years before.
        Delay discernible the applicants for discretionary relief also.
        Just    because    the  applicants   have   preferred   repeated
        representations it does not mean that there is no delay in this
        case.The Hon'ble Supreme Court has in the case ofState of
        Haryana v. Miss Ajay Walia, [1997 Lab IC(SC) 286] held that
        repeated representations to various authorities cannot extend
        time limit for approaching courts of law. It is therefore clear
        that the instant case is liable to be dismissed on the sole
        ground of delay.4.     It is further submitted that on merits also, the applicant
        has failed to make out a case. While considering a request for
        appointment on compassionate grounds by the CRC, a
        balanced and objective assessment of the financial condition
        of the family is made taking into consideration its assets and
        liabilities and all other relevant factors such as number of
        dependents, number of unmarried daughters, number of minor
        children, annual income from other sources, ownership of
        house, ownership of land and total liability of the family. This
        is done to assess the degree of indigence among all the
        applicants considered for such appointments within the
        prescribed ceiling of 5% of the Direct Recruitment vacancies.
        Accordingly, the request of the applicant for compassionateOA 512 /11appointment was duly examined by the CRC which met on
       22.3.2006 but was rejected as the family was not found in
       indigent circumstances when compared with the others on the
       basis of the various criteria mentioned above like the family of
       the applicant was found to be relatively less indigent
       compared to other cases that came before the CRC and hence
       was rejected. A copy of the minutes of the CRC meeting held
       on 22.3.2006 along with Annexure is produced herewith and
       marked as Annexure R-1.          As evident from therein, five
       candidates including the applicant were considered for
       appointment to the post of Postal Assistant against the
       available nine vacancies by the CRC. After considering all the
       aspects and evaluating the relative indigence of all the
       candidates on the basis of the seven criteria mentioned above,
       the CRC found that indigence has been established only in
       respect     of    two     cases     viz,    Ms.S.Shylaja     and
       Smt.A.N.Subhashini and the remaining three cases including
       that of the applicants were rejected due to lack of relative
       indigence. The balance 7 vacancies were carried forward to
       the ensuing year. It is therefore clear that the rejection of the
       applicant's request for compassionate appointment was made
       on valid grounds and no malafide can be alleged in the whole
       process."4.    The applicant has filed his rejoinder. He has contended that the

respondents have not appreciated properly the financial conditions of the

family of the applicant and thus the rejection of the applicant's request for

compassionate appointment was illegal and invalid. It has also been

contended that the rejection letter of CRC was not communicated to the

applicant on time.    Subsequent requests of various others have been

favourably considered.5.    Counsel for the applicant argued that the applicant has been

representing to the respondents but the same have not been considered.

As regards limitation, there is scope for condoning the delay in respect of

meritorious cases.In this regard counsel for the applicant relied upon

the decision of the Apex Court inState of Nagaland vs Lipokao and

others(2005) 3 SCC 752, wherein it has been held that Court shouldOA 512 /11decide the case on merit and should be liberal in condoning the delay.The Apex Court has referred to the decision in the case ofN.

Balakrishnan vs M. Krishnamurti(1998) 7 SCC 123. As regards

financial conditions, the applicant has a house and 39 cents of land,

which yield Rs 10000 per annum. Apart from the family pension of less

than Rs 3000/- there is no other income. The applicant is well qualified

to be considered for compassionate appointment to the post of Postal

Assistant. There are individuals who have been granted appointment on

compassionate grounds on the basis of their declaration of nil income,

which is too hard to believe, as no one could survive without any income.6.    Counsel for the respondents submitted that the scheme of

compassionate appointment has been framed to mitigate the immediate

hardship that the family would face when the breadwinner of the family

dies in harness. In the instant case applicant's father expired as early as

in 2005 and when the mother of the applicant submitted an application,

the same was considered but no appointment could be granted in view of

the fact that it is found that the applicants family was not in indigent

circumstances. It is against the said order of 20-06-2006 that this

application has been filed as late as June, 2011 and no explanation has

been offered for the inordinate delay in filing this O.A.7.    Arguments were heard and documents perused. First, as to the

legal aspect of limitation. Law provides for a limitation to ensure that by

lapse of time no vested rights are created with the other side and that the

party seeking relief should not be indolent. When the order of rejection

was of 2006, the applicant ought to have approached the Tribunal within

one year therefrom. Though it has been stated that the order did notOA 512 /11reach on time, there is no clear mention about the date of receipt of the

same. In any event, from communication addressed to the Ministers, it is

evident that the rejection order had reached the hands of the applicant

earlier than May 2010.         Provision exists for filing application for

condonation of delay and if sufficient cause is shown, the Tribunal has

the discretion to condone the delay involved.           No    application for

condonation of delay has been filed; rather the applicant, in paragraph 3

of the Original Application has stated that the case is well within

Limitation.When an order of 2006 is challenged, the same cannot be

within the limitation period.     For condoning the delay application is a

must. In the absence of an application for condonation of delay, the

Tribunal cannot of its own condoned the delay.       The Apex Court in the

case ofD.C.S.Negi v. Union of India & others[S.L.P.No.7956/2011]

has held that it is the duty of the Tribunal to ensure that the application

is filed within the limitation periods (and not the same is accompanied by

an application for condonation of delay). In the instant case there being

no application for condonation of delay, the respondents having also

raised the question of limitation, the Tribunal cannot marginalise the

objection on limitation. Obviously the application is time barred. There is

no provision to consider the OA without an application for condonation of

delay.In this regard, reference is invited to the decision of the Apex court

in the case ofDipak Chandra Ruhidas vs Chandan Kumar Sarker(2003) 7 SCC 66, wherein the Apex Court has held as under:-"18. Learned counsel then urged that this special leave
         petition may be treated as an appeal under Section 116-A of
         the Act. An appeal is required to be filed within 30 days of
         the order and judgment of the Tribunal (High Court) and the
         power has been given to the Supreme Court to condone the
         delay in case of the appeal having been filed after 30 days.
         In the present case no application for condonation of delay
         has been filed in terms of the proviso appended to sub-OA 512 /11section (2) of Section 116-A of the Act. As the appeal would
      have otherwise been barred by limitation, we are not in a
      position to treat this appeal as an appeal under Section 116-
      A of the Act. We are, therefore, of the opinion that the said
      special leave petition was not maintainable and leave underArticle 136of the Constitution of India was wrongly granted.
      It is, accordingly, revoked. The special leave petition is
      dismissed."8.   Thus, in view of the fact that the application has been filed belatedly

and without an application for condonation of delay,         the Original

Application fails and hence the same is dismissed. No costs




                                                    Dr K.B.S.RAJAN
                                                 JUDICIAL MEMBER

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