Union Of India & Ors vs Brij Bhushan Sharma & Ors

Union of India & Ors. ... Appellants

Vs.

Brij Bhushan Sharma & Anr. ... Respondents

O R D E R

Delay condoned. Leave granted. Heard the counsel.

2. The facts in brief are as under: The first

respondent was appointed as an Extra-departmental Mail

Carrier on 27.10.1978. It is stated that on 2.11.1998,

someone threw acid in his eyes, as a result of which, he

lost his vision in both eyes. The Department terminated

him from service on 25.1.1999 and appointed the third

respondent in his place. The first respondent submitted a

representation to the Department praying that his wife

(the second respondent) be appointed in his place. The

said request was not accepted. The first and the second

respondents therefore approached the CAT, Jaipur in OA

No.445/2000 praying inter alia to set aside the 2

appointment given to the third respondent and to direct

the Department to consider second respondent for

appointment on compassionate grounds. The Tribunal

dismissed their application on 26.7.2001 on the ground

that the case did not come within the purview of the

rules for consideration for appointment on compassionate

grounds, as first respondent had voluntarily resigned

from the post.

3. The first and second respondents challenged the said

order of the Tribunal, by filling CWP No.890/2002. The

High Court, by the impugned order dated 2.4.2003, allowed

the writ petition with a direction to the Department to

reinstate the first respondent in service with all

consequential benefits with a further direction that if

he was found unfit to discharge his duties, he should be

considered for retirement on invalidation pension; and

that in the event of such retirement, second respondent,

who is his wife should be provided suitable employment as

per her qualification and eligibility as a special case,

even if there was no provision for compassionate

appointment in such cases. The High Court also awarded

Rs.10,000/- as costs. Feeling aggrieved, the appellants

have filed this appeal by special leave.

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4. The direction of the High Court to appoint the

second respondent on compassionate grounds even if the

rules do not permit it, in the event of first respondent

being retired with invalidation pension, is clearly

unsustainable. When an employee is retired on the ground

of disability and is paid invalidation pension, there

cannot be any compassionate appointment, unless of course

the rules provide for it. As rightly contended by the

appellants, there cannot be a double benefit.

5. In regard to other directions given by the High

Court, we find that the subsequent developments have some

bearing. When the matter came up on 9.4.2009, both sides

informed the court that in pursuance of the order of the

High Court, the first respondent had been appointed as a

Peon subject to the decision of this Court and is working

ever since then, in the Post Office without any

complaint. In view of it, this Court directed the learned

counsel for the appellants to seek instructions as to

whether the first respondent could be continued in

service as a peon, having regard to the spirit of the

Persons with Disabilities (Equal Opportunities etc.) Act,

1995. But as there is no specific decision by the

appellants as yet in that behalf, we have considered the

matter. Having regard to the peculiar facts and

circumstances and as the first respondent is 4

satisfactorily serving the department, we are of the view

that the first respondent should be continued in service

as a Peon, as directed by the High Court but subject to

certain modifications in the order of the High Court.

6. The appeal is accordingly disposed of with the

following directions:

(i) The first respondent who has been reinstated in pursuance of the decision of the High Court may be continued in service as a peon. If the appellants find it difficult to continue him in service, he may be retired subject to payment of invalidation pension.

(ii) While he is entitled to continuity of service from the date of termination to date of reinstatement, the first respondent shall not be entitled to any salary or other financial benefits for that period. It is however made clear, that if any amount has already been paid to him for that period, in pursuance of the order of the High Court, it may be recovered back in easy instalments.

(iii)The direction levying costs of Rs.10,000/- is set aside.

(iv) The adverse observations made against the Department and its officers stand deleted.

(v) The direction to offer appointment to second respondent (wife of first respondent) in the event of 5

first respondent being retired on invalidated pension, is set aside.

___________________J.

(R. V. Raveendran)

New Delhi; ____________________J.

January 15, 2010. (Surinder Singh Nijjar)