Allowed¶45

Union of India v. Kailash Ch.Mohapatra

Compassionate appointment – Execution of Tribunal's order – Scope

Orissa HC20 Mar 2024WP(C)/561/2005

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Case brief

AI extract

What is this about?

Compassionate appointment; functus officio; execution of Tribunal orders; scope of Section 27 Administrative Tribunals Act 1985; Tribunal cannot issue directions beyond the original order in an implementation proceeding; CAT Cuttack order dated 04.03.2004 in M.A. No.597 of 2003 in O.A. No.607 of 2001 set aside; lapse of time in compassionate appointment claims; Union of India v. Kailash Chandra Mohapatra; W.P.(C) No.561 of 2005; High Court of Orissa; decided 20.03.2024.

What did the court decide?

Writ petition allowed; impugned order dated 04.03.2004 passed by the Tribunal in O.A. No.607 of 2001 set aside being beyond jurisdiction. ¶45

Union of India Vs Kailash Ch.Mohapatra — Writ and Judicial Review | Orissa HC (2024)

What the court decided

AI extract

Outcome

Writ petition allowed; impugned order dated 04.03.2004 passed by the Tribunal in O.A. No.607 of 2001 set aside being beyond jurisdiction.

¶45

Issue for consideration

Whether the Tribunal, while entertaining a miscellaneous application filed primarily for implementation of its order in O.A. No.607 of 2001, could issue further directions (for compassionate appointment) beyond the directions contained in the original order. +1 more

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Court's answer

In M.A. No.597 of 2003, a proceeding for implementation of its order, the Tribunal went beyond the scope of its initial order dated 15.05.2002 in O.A. No.607 of 2001 by directing compassionate appointment; on this ground alone the impugned order deserved interference.

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Ratio / Principle

While exercising power under Section 27 of the Administrative Tribunals Act, 1985 for execution of the order dated 15.05.2002, the Tribunal ought not to have gone beyond the terms of that order.

¶40

Key takeaways

The Tribunal had become functus officio on the opposite party's claim for compassionate appointment after disposing of O.A. No.607 of 2001 by order dated 15.05.2002, and could proceed only under Section 27 of the Act for execution of that order.ratio¶41
The Supreme Court decisions relied upon by learned Central Government Counsel for the petitioners (Madhuri Maruti Vidhate; Bheemesh; N.C. Santhosh) are not applicable in the facts and circumstances of the present case.obiter¶43

Detailed headnote1 paragraphs

Compassionate appointment — Execution of Tribunal's order — Scope — The Central Administrative Tribunal, Cuttack Bench, having disposed of O.A. No.607 of 2001 on 15.05.2002 without issuing any direction to appoint the applicant, became functus officio on his compassionate-appointment claim; in M.A. No.597 of 2003, filed for implementation of that order, the Tribunal exceeded its jurisdiction under Section 27 of the Administrative Tribunals Act, 1985 by directing the Union to provide compassionate appointment in a Group-D post within ninety days — in exercise of execution powers the Tribunal cannot travel beyond the terms of the order sought to be executed — impugned order dated 04.03.2004 set aside as beyond jurisdiction; writ petition under Article 226 allowed. Supreme Court precedents on compassionate appointment relied on by the petitioners (Madhuri Maruti Vidhate; Bheemesh; N.C. Santhosh) held inapplicable on the facts; in any event, no purpose would be served by considering the claim 26 years after the employee's death, the opposite party being 54 years of age.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.561 of 2005

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Union of India and another …. Petitioners
-versus-
….
Kailash Chandra Mohapatra Opposite Party
Advocates appeared in this case:
For Petitioners : Mr. Bhabani Shankar Rayaguru
Central Government Counsel
For Opposite Party : Mr. Susanta Sekhar Mohapatra
Advocate
CORAM:
THE CHIEF JUSTICE
MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
20.03.2024
Chakradhari Sharan Singh, CJ.
The Union of India, in the present writ petition filed
under Article 226 of the Construction of India, has questioned the
sustainability of an order dated 04.03.2004 passed by the Central
Administrative Tribunal, Cuttack Bench, Cuttack (in short,
„Tribunal‟) in O.A. No.607 of 2001 whereby the Tribunal has
directed the petitioners to provide the opposite party
compassionate appointment in „Group-D‟ post.

¶4

We have heard learned counsel for the petitioners and learned Central Government Counsel for the opposite party.

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W.P.(C) No.561 of 2005

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Page 1 of 9

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The facts, relevant for the present adjudication are not at all in dispute. The opposite party‟s father was working as a ‘Mali’ under the Aviation Research Centre (ARC), Charbatia when he met a premature death on 16.09.1990. The mother of the opposite party made an application thereafter for appointment on compassionate ground of her son, who is the opposite party herein, on 16.11.1990. The opposite party‟s mother was informed later by the department that the request for a compassionate appointment was being processed. On 25.11.1991, the ARC Headquarters returned the said application dated 16.11.1990 to the mother of the opposite party asking her to send the application for compassionate appointment with due recommendation, as and when a vacancy would arise at ARC, Charbatia. Petitioner No.2 thereafter issued a letter to the opposite party stating that his appointment would be considered subject to the availability of a suitable vacancy at the ARC, Charbatia. Subsequently, another letter was issued by the Section Officer, ARC, Charbatia to the opposite party to positively furnish certain information by 13.10.1992, in the attached format for further action.

¶8

It is the case of the opposite party that when four vacant posts of cooks were available, the opposite party was called to face the interview. He, however, could not be selected. Subsequently, in the year 1996, the opposite party was again called for a physical test for consideration of his appointment on compassionate ground to the post of Aircraft Assistant. However, because of an interim order passed by the Tribunal in a different case i.e. M.A. No. 269 of 1996 arising out of O.A. No.349 of 1995, the recruitment process was stayed. Later, the said interim order was vacated on

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W.P.(C) No.561 of 2005 Page 2 of 9

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25.01.1999. The opposite party approached the Tribunal by filing O.A. No.76 of 1997 seeking a direction to consider his case for appointment on compassionate ground against the post of Aircraft Assistant. The said application was disposed of by the Tribunal by an order dated 25.05.2000 asking the Department to consider his case for appointment to the post of Aircraft Assistant within 60 days from the date of receipt of the order, after taking into account the performance of the opposite party in the test. It is also not in dispute that there was an interim order passed by this Court in O.J.C No.1495 of 1999 against the aforesaid order dated 25.01.1999. Resultantly, the recruitment process for the said post remained stayed. It appears that the opposite party had approached the Tribunal by filing M.A. No. 544 of 2000 alleging disobedience of the order passed by the Tribunal on 25.05.2000. The said O.J.C No.1495 of 1999 stood disposed of by an order dated 21.11.2000. On 30.08.2001 the opposite party was intimated that he could not be selected for the post of Aircraft Assistant.

¶11

Apparently, thus, from the date of death of the opposite party‟s father in 1990 the opposite party could not be given an appointment on compassionate ground till 30.08.2001 since he could not be selected for the post of Aircraft Assistant and was not found fit for appointment against the post of Aircraft Assistant.

¶12

This led to the filing of another original application by the opposite party before the Tribunal giving rise to O.A. No.607 of 2001 seeking quashing of the said communication dated 30.08.2001. The Tribunal disposed of the said O.A. No.607 of 2001 by an order dated 15.05.2002. The Tribunal noted in its order

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W.P.(C) No.561 of 2005 Page 3 of 9

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that the opposite party was not found suitable for the post of Aircraft Assistant and thereafter he was given an offer for the post of cook and again he was not found suitable for the post. He was also given an offer for employment as Safaiwala/Sweeper but the opposite party did not agree to the said offer. It appears from the said order that the learned Additional Standing Counsel informed the Tribunal that the opposite party would be given an offer of employment within a period of one month. The opposite party also informed the Tribunal that he was ready to take employment if that was suitably offered i.e. the post of Gardner/Mali/Peon or any such similar post. In that background, taking into account the respective stands of the parties before the Tribunal, the Tribunal disposed of the Original Application requesting the learned Additional Standing Counsel to exercise his good offices to resolve the problem outside the Court as expeditiously as possible.

¶15

In 2003, the respondent/opposite party filed M.A. No.597 of 2003 in the aforesaid O.A. No. 607 of 2001 before the Tribunal alleging disobedience of its order dated 15.05.2002. The Tribunal, taking into account the statements made by the opposite party in M.A. No.597 of 2003, disposed of the same by an order dated 04.03.2004 in the following terms:

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“ Despite the aforesaid repeated orders dated 15.5.02 (rendered in O.A.No.607/01) Respondents have not cared to provide a Gr.D employment to the Appellant as yet; for which the Applicant has filed the present M.A. No.597/03 in this disposed of matter of O.A. No.607/01. In the objection filed by the Respondents in MA No.597/03 it has been disclosed that only 5% vacancies have been ear-marked for providing compassionate appointment and therefore, the Respondents have not been able to provide an

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W.P.(C) No.561 of 2005 Page 4 of 9

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employment on compassionate ground to the applicant in Gr.D post. Cause of action in the present case having arisen long before the imposition of 5% condition, such an objection is not sustainable and the Respondents are bound down by their own undertakings given repeatedly and as a consequence, the Respondents are hereby directed to provide a compassionate employment (even in a Gr.D post) to the Applicant and, in the particular circumstances of the case, a time limit of ninety days is hereby fixed; by which time, the Respondents should provide a compassionate appointment to the Applicant in Gr.D post so that he can save himself/his family from starvation. M.A. No.597/03 is accordingly disposed

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of.” (underscored for emphasis).

¶20

In the wake of above-noted facts, the said order of the Tribunal dated 04.03.2004 is under challenge in the present writ petition.

¶21

There is another aspect of the matter which deserves to be noted at this juncture. The present writ petition was taken up on 24.02.2005 when the following interim order was passed:

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“ Misc. Case No.494 of 2005

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Heard.

¶24

As an interim measure, the order dated 04.03.2004 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.607 of 2001 (Annexure-7) shall remain stayed pending disposal of the writ application.

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Misc. Case is disposed of.

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However, if he so likes, the opposite party is at liberty to file application for variation of this order after his appearance.”

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W.P.(C) No.561 of 2005

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Page 5 of 9

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It was clearly observed in the said order that the opposite party would be at liberty to file an application for variation of the said interim order after his appearance. It is the case of the opposite party that the order requiring the petitioners to file requisites for issuance of notice was not complied with by the them and the opposite party received notice much later, in 2022.

¶30

Assailing the impugned order passed by the Tribunal, learned Central Government Counsel appearing on behalf of the petitioners have argued that while entertaining miscellaneous application filed primarily for implementation of an order of the Tribunal, the Tribunal could not have issued further directions beyond the directions issued in O.A.No.607 of 2001, which were required to be implemented. He has, further, submitted that the appointment of the opposite party on compassionate ground cannot be claimed as a matter of right. He contends that opposite-party‟s application for appointment on compassionate ground was duly considered and it is manifest from the admitted facts that he could not be given such appointment as he was not found fit. With the lapse of time i.e. more than 10 years after the date of death of the father of the opposite party, the opposite-party‟s case for appointment on compassionate ground, which is for providing immediate succor to the family of an employee who dies in harness leaving his/her family in penury, had lost its purpose since he could sustain himself in the meanwhile.

¶31

Learned counsel appearing on behalf of the petitioners has relied upon the Supreme Court‟s decision in case of State of Maharashtra & Anr Vs. Ms. Madhuri Maruti Vidhate reported in

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W.P.(C) No.561 of 2005 Page 6 of 9

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2022 SCC OnLine SC 1327 , Secretary to Govt., Department of Education v. Bheemesh Alias Bheemappa , reported in 2021 SCC OnLine SC 1264 and N.C. Santhosh Vs. State of Karnataka and Others reported in (2020) 7 SCC 617 . He has submitted that since compassionate appointment is an exception to normal rule of recruitment, and is not a matter of right, and the consideration for appointment on compassionate ground is to enable the family to tide over the sudden crisis, the opposite party cannot be extended the benefit at this distance of time. It is further argued that in view of ratio of decisions referred to, it is the norm, which prevails on the date of consideration of application, would be the basis for consideration of claim for compassionate appointment.

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Learned counsel for the opposite party on the contrary has drawn the Court‟s attention to the statement made in paragraph 6 of the rejoinder filed on behalf of the petitioners-Union of India to the counter affidavit filed on behalf of the opposite party that it is an admitted fact that cases of various other applicants were pending for compassionate appointment and a list was prepared in which the name of the opposite party figured at serial No.2.

¶35

It is evident from the facts noted above that the opposite party‟s claim for grant of compassionate appointment before the Tribunal in O.A. No.607 of 2001 was decided by an order dated 04.03.2004 that the applicant would be given an offer of employment within a period of one month. While disposing of the case, the Tribunal had observed that the Additional Standing Counsel should exercise his good offices to resolve the problem outside the Court as expeditiously as possible. There was no

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W.P.(C) No.561 of 2005 Page 7 of 9

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direction issued by the Tribunal to appoint the opposite party on compassionate basis. In a proceeding for implementation of the said order filed by the respondent/opposite party giving rise to M.A. No.597 of 2003, the Tribunal passed the aforesaid order directing the petitioners to provide compassionate appointment to the applicant. Apparently, the Tribunal went beyond the scope of the initial order passed dated 15.05.2002 in O.A. No.607 of 2001. In our opinion, the order of the Tribunal deserves to be interfered with on the said ground alone.

¶38

Section 27 of the Administrative Tribunals Act, 1985 provides for execution of the orders of the Tribunal which reads as under:

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“27. Execution of orders of a Tribunal.—Subject to the other provisions of this Act and the rules, 2 [the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any court (including a High Court) and such order] shall be executed in the same manner in which any final order of the nature referred to in clause (a) of sub-section (2) of section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed.”

¶40

We reiterate at this juncture that the Tribunal ought not to have gone beyond the terms of the order dated 15.05.2002 passed in O.A. No.607 of 2001 while exercising the power under Section 27 of the Act for execution of the said order. The impugned order deserves to be set aside on this score alone.

¶41

The Tribunal had become functus officio on the issue of the claim of the opposite party for compassionate appointment

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W.P.(C) No.561 of 2005 Page 8 of 9

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after having disposed of O.A. No.607 of 2001 by the said order dated 15.05.2002 and it could not have proceeded further in the said matter except for exercise of power under Section 27 of the Act for execution of the order dated 15.05.2002. Further, we are of the view that the Supreme Court‟s decisions relied upon by learned Central Government Counsel for the petitioners are not applicable in the facts and circumstances of the present case as have been noted above.

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The impugned order dated 04.03.2004 passed in O.A. No.607 of 2001 is accordingly set aside being beyond jurisdiction. In any event, no purpose will be served by considering the opposite party‟s case for compassionate appointment at this juncture, 26 years after the death of the employee, when the opposite party has attained the age of 54 years.

¶45

With the aforesaid observations, the writ petition is allowed. The impugned order dated 04.03.2004 passed by the Tribunal in O.A. No.607 of 2001 is hereby set aside.

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(Chakradhari Sharan Singh) Chief Justice

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(M.S. Raman) Judge

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Signature Not Verified

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Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 08-Apr-2024 12:38:04

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SK Jena/Secy

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W.P.(C) No.561 of 2005

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Page 9 of 9

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 04.03.2004 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in M.A. No.597 of 2003 (filed in disposed-of O.A. No.607 of 2001) directing the petitioners to provide the opposite party compassionate appointment in a Gr.D post within ninety days.¶24
Central Administrative Tribunal, Cuttack Bench, Cuttack · 04.03.2004
Prior proceeding
Opposite party's father, working as 'Mali' under the Aviation Research Centre (ARC), Charbatia, died on 16.09.1990; his mother applied on 16.11.1990 for the opposite party's appointment on compassionate ground.¶7
Prior proceeding
By letter dated 25.11.1991 the ARC Headquarters returned the application dated 16.11.1990 to the mother, asking her to send it with due recommendation when a vacancy arose at ARC, Charbatia.¶7
Prior proceeding
Opposite party was interviewed for four vacant cook posts but not selected; in 1996 he was called for a physical test for the post of Aircraft Assistant; the recruitment process was stayed by an interim order of the Tribunal in M.A. No.269 of 1996 arising out of O.A. No.349 of 1995, later vacated on 25.01.1999.¶8
Prior proceeding
O.A. No.76 of 1997 filed before the Tribunal seeking a direction to consider the opposite party for appointment as Aircraft Assistant; disposed of by order dated 25.05.2000 directing the Department to consider his case within 60 days in light of his test performance.¶10
Prior proceeding
An interim order passed by the High Court in O.J.C No.1495 of 1999 against the order dated 25.01.1999 kept the recruitment stayed; the opposite party filed M.A. No.544 of 2000 alleging disobedience of the Tribunal's order dated 25.05.2000; the O.J.C stood disposed of on 21.11.2000.¶10
Prior proceeding
By communication dated 30.08.2001 the opposite party was informed that he could not be selected for the post of Aircraft Assistant.¶10
Prior proceeding
O.A. No.607 of 2001 filed before the Tribunal seeking quashing of the communication dated 30.08.2001; disposed of by order dated 15.05.2002 noting offers of cook and Safaiwala posts and requesting the learned Additional Standing Counsel to resolve the problem outside the Court; no direction to appoint was issued.¶14
Prior proceeding
M.A. No.597 of 2003 filed in the disposed-of O.A. No.607 of 2001 alleging disobedience of the order dated 15.05.2002; disposed of by the impugned order dated 04.03.2004 directing compassionate appointment in a Gr.D post within ninety days.¶15
Prior proceeding
On 24.02.2005 the High Court stayed the impugned order as an interim measure in Misc. Case No.494 of 2005, with liberty to the opposite party to apply for variation after his appearance.¶21
Prior proceeding
Case of the opposite party that requisites for issuance of notice were not complied with and he received notice of the writ petition only in 2022.¶29

Union of India v. Kailash Ch.Mohapatra

Case brief

What is this about?

What did the court decide?

Union of India v. Kailash Ch.Mohapatra

Case brief

What is this about?

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