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Article 226 in The Constitution Of India 1949

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Patna High Court
Sarita Kashyap @ Kumari Sarita vs Secretary To The Govt.Of India on 8 March, 2010
Author: S.K.Katriar
            CIVIL WRIT JURISDICTION CASE No.6123 OF 2004
                                *******

In the matter of an application under Article 226 of the Constitution of India.

******* SARITA KASHYAP @ KUMARI SARITA KASHYAP, daughter of late Gopal Prasad Mahtha, C/o Shri Mukul Prasad, resident of Mohalla- Hamidganj, near Pathar Ki Masjid, P.O. Daltanganj, District Palamoun.

..... Petitioner.

Versus

1. Secretary to the Govt. of India, Department of Telecom -cum-

Director General Department of Telecom "Sanchar Bhawan" New Delhi.

2. Chief General Manager, Department of Telecommunication, Patna.

3. The Registrar, the Central Administrative Tribunal, Patna Bench, Patna.

........Respondents.

******* For the Petitioner: ` Mr. Vishnudeo Narayan, Advocate. For the Respondents : Mr. Jawahar Prasad Katna, Sr. Advocate.

******* PRESENT THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ********* S K Katriar & Kishore K. Mandal, JJ. This writ petition is directed against the following orders passed by the Central Administrative Tribunal, Patna Bench, Patna:

(i) Order dated 12.10.2000, passed in O.A. No.411 of 1997 (Kumari Sarita Kashyap Vs. Secretary to Government 2 of India and another), whereby the original application has been rejected, and upheld the decision of the respondent authorities declining appointment of the petitioner on compassionate ground,

(ii) Order dated 22.3.2004, passed in R.A. No.4 of 2001 (R) (Kumari Sarita Kashyap Vs. The Union of India and others), whereby the review application has been rejected.

2. According to the writ petition, One Gopal Prasad Mahtha was engaged by the Department of Telecommunication as daily-rated employee with effect from 7.8.1977. His services were regularised with effect from 1.1.1989. He met with an accident on 1.12.1991. He submitted an application on 10.2.1992, for petitioner‟s appointment on compassionate ground. The respondent authorities sent their reply dated 26.2.1992 (Annexure-6), to the employee calling upon to furnish proof of adoption of the petitioner. In the meantime, the authorities constituted a Medical Board. The employee appeared before the medical board on 14.2.1992, which submitted its report dated 26.2.1992 (Annexure-4), and declared him handicapped to the extent of 25%. A second Medical Board was also constituted which submitted its report dated 9.4.1993 (Annexure-5), which stated that the employee incapacity was not complete, and not of a permanent nature. The Medical Board was, therefore, of the view that the employee can be continued in service of 3 "less laborious character than that which he had been doing....". The employee, therefore, continued to function. The respondent authorities issued order dated 30.7.1993 (Annexure-9), whereby the employee was granted invalid retirement with effect from 10.7.1993. He would have reached the age of superannuation on completion of sixty years of age on 31.7.1993. He died on 5.9.1993. In view of the position that the respondent authorities did not accede to the employee‟s request for petitioner‟s appointment on compassionate ground, she moved the Tribunal by preferring O.A. No.411 of 1997. The petitioner set up her claim for compassionate appointment on the ground that she is validly adopted daughter of the employee, and he had been incapacitated by the accident. The same has been rejected by the impugned order. The petitioner thereafter filed review application which has also been rejected by the impugned order.

3. We have perused the materials on record and considered the submissions of learned counsel for the parties. The most vital aspect of the matter appears to us is that there was neither any evidence before the authorities, nor before the Tribunal, nor before us, that the petitioner was the validly adopted daughter of the employee. Indeed the employee seems to have submitted his application dated 10.2.1992, requesting the department to appoint the petitioner on compassionate ground. The respondent authorities promptly replied by communication dated 26.2.1992 (Annexure-6), calling upon the employee to furnish proof of 4 adoption. No material has been brought to the notice of the Tribunal that she was validly adopted daughter of the employee. The petitioner has placed before us photo copy of an affidavit alleged to have been sworn by the employee on 28.7.1993, wherein he stated that he has all through remained unmarried. He adopted the petitioner, who is the daughter of his full sister, as his own daughter. We do not find it possible to place reliance on the affidavit. The employee did not submit any proof of adoption when he was called upon to do so. No such proof was placed before the Tribunal. The affidavit has been placed for the first time in the present proceeding, and is dated 28.7.1993, sworn about six weeks prior to his death. It appears to be a got-up document for the purpose of the present proceeding. Furthermore, this is not a forum of facts. It should have been left to the authorities in the first instance, and may be by way of appeal before the Tribunal, to determine the issue of fact whether or not the petitioner was a validly adopted daughter of the employee. In that view of the matter, the very basis of the petitioner‟s claim for appointment on compassionate ground in the capacity of a validly adopted daughter of the employee is absent.

4. The second aspect of the matter is equally important and operates against the petitioner. The employee seems to have met with an accident on 1.12.1991, and the materials on record do not suggest that it was of a grave nature. Both the medical reports on record show that he had suffered injury to the extent of 25%, and he may be allowed to 5 continue in service but with less arduous task than he was engaged on the date of the accident. Furthermore, the employee seems to have continued in harness up to 30th of July 1993, the date on which the authorities issued the order granting invalid retirement to the employee. He was thus left only one day before his superannuation. Learned counsel for the petitioner relied on Clause (1) of Appendix-2 of the Government of India, Department of Personnel and Training, O.M. No.14014/6/86-Estt. (D), dated the 30th June, 1987, and is reproduced hereinbelow for the facility of quick reference:

1. To whom applicable:
(a) To a son or daughter or near relative of a Government servant who dies in harness including death by which leaving his family in immediate need of assistance when there is no other earning member in the family.
(b) In exceptional cases when a Department is satisfied that the condition of the family is indigent and is in great distress, the benefit of compassionate appointment may be extended to a son/daughter/near relative of a Government servant retired on medical grounds under Rule 18 of Central Civil Services (Pension) Rules 1972 or corresponding provisions in the Central Civil Service Regulations before attaining the age of 55 years. In case of Group „D‟employee whose normal age of superannuation is 60 years, compassionate appointment may be considered where they are retired on medical grounds before attaining the age of 57 years.
(c) To a son or daughter or near relative of a Government who dies during the period of extension in service but not re-employment.
6
Clause (1) is obviously inapplicable to the facts and circumstances of the case and indeed reliance has not been placed on clause 1(a). The petitioner has really placed reliance on Clause (b) that, in exceptional cases, appointment on compassionate ground can be made provided the cause of action for the same on medical ground had taken place before the employee reached 57 years of age. In the present case, the employee had retired on medical ground one day, or at best twenty days, prior to the date he would have reached his age of superannuation. The petitioner‟s case does not fall under this clause.
5. In the result, there is no merit in this case. The writ petition is dismissed. In the circumstances of the case, there shall be no order as to costs.

(S K Katriar, J.) (Kishore K. Mandal, J.) Patna High Court, Patna Dated the 8th day of March, 2010.

S.K.Pathak/ (NAFR)