SUPREME COURT OF INDIA
Union of India
Vs.
Draupadi Behara
C.A.No.7 of 2005
(Arijit Pasayat and S.H.Kapadia JJ.)
03.01.2005
Arijit Pasayat, J.
1. Heard learned counsel for the parties.
2. Leave granted.
3. The respondent No.1 is the widow of one late Ishwar Chandra Behara, who was
working EDDA cum EDMC. He died on 25.02.1995. Indisputedly, he left behind his
widow and five sons including respondent No. 2. An application for employment
of respondent No. 2 as a compassionate measure was filed before the
authorities. The same was rejected on the basis of an enquiry conducted which
revealed that the sons were living together and there was no prima-facie
evidence of any separation. An application under Section 19 of the Administrative
Tribunal Act, 1985 (in short 'the Act') was filed before the Central
Administrative Tribunal, Cuttack Bench (in short 'the CAT'). It was pleaded
that the authorities were not justified in rejecting the application for
compassionate appointment merely on the basis that the report indicated about
joint living of the widow and the five sons.
4. The present respondents filed an application under Article 227 of the Constitution
of India, 1950 (in short the 'Constitution') before the Orissa High Court
i.e. OJC No. 15059 of 1998. By the impugned judgment, the High Court held that
the decision of the authorities rejecting the prayer for compassionate
appointment was not in order. Direction was given to appoint the present
respondent No. 2 within a particular time with the condition that respondent
No. 2 will financially support respondent No. 1 so long as she is alive.
5. Mr. R. Mohan, learned Additional Solicitor General submitted that the
findings recorded by the High Court are erroneous. The rejection of the claim
for compassionate appointment was done after considering the report made by the
concerned authority which conducted due and proper enquiry about the financial
status. CAT considered the relevant aspects and rightly held that the prayer for
compassionate appointment was not to be accepted. The High Court erroneously
placed emphasis on the certificate issued by the Member of Parliament and
directed for appointment. Such a direction could not have been given. At the
most, the High Court could have directed for consideration of the case of
respondent No. 2 along with similarly placed persons. In any event, no evidence
was led to show that the findings recorded by the enquiring authority were
erroneous.
6. In response, Mr. Shibhashih Mishra, learned counsel appearing for the
respondents submitted that the scheme of the authorities clearly indicates that
if a certificate is issued by a Sarpanch or Member of Parliament or MLA, then
the request for compassionate appointment may be entertained and considered on
merits. In this case, indisputedly, a Member of Parliament had given a
certificate which was not shown to be wrong.
7. We find that it has been clearly indicated in the report about
sufficient income of all members of the family and the prima-facie absence of
any material to show that the members had separated. The respondents remained
content by producing certificate of M.P. No other material was placed for
consideration to contradict conclusions recorded in the enquiry report. Great
emphasis has been laid by the respondents on the scheme of compassionate
appointment (G.I. Dept. of Posts, letter No.17-85/93-E.D. & Trg. Dated
02.02.1994), more particularly the following:-
"In certain cases where there is already an earning member in the family
but Huddra/Sarpanch or an MP/MLA certified that the employed member is living
separately and not referring any financial assistance to the main family, the
requests of compassionate appointment may be entertained and considered on
merits."
8. The same is not of any assistance to the respondents. The quoted portion was
one of the points on which clarification was sought for. In any event, there
was not even a remote suggestion that the certificate of MP or MLA would be
determinative.
9. It would be, therefore, appropriate to direct the Tribunal to re-consider
the matter. The parties shall be permitted to place materials in support of
their respective stand. It goes without saying that CAT, after considering the
relevant materials, shall dispose of the matter in accordance with law. We make
it clear that we have not expressed any opinion on the merits of the case.
10. However, the High Court was clearly in error in directing appointment,
without reference to the presence of similarly situated persons who were
seeking compassionate appointment. No direction could have been given by the
High Court for appointment as such within a time limit and for asking extension
of time to comply with the order, till the concerned respondent was appointed.
At the most, the High Court could have asked for consideration of the case
of the concerned respondent along with other applicants for compassionate
appointment, if any, in terms of the operative scheme.
11. The appeal is, accordingly, disposed of. No costs.