Central Administrative Tribunal Bangalore Bench, Bengaluru Original Application No.170/001437/2018 Dated This the 3Rd Day Of
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1 OA NO.1437/2017/CAT//BANGALORE CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH, BENGALURU ORIGINAL APPLICATION NO.170/001437/2018 DATED THIS THE 3RD DAY OF APRIL, 2019 HON’BLE DR.K.B.SURESH …MEMBER(J) HON’BLE SHRI C.V. SANKAR …MEMBER(A) Smt. Sakkubai A. Badiger, Age : 30 years, W/o. Devendra Chandrappa Pattar Working as : GDS BPM Mugalihal B.O A/W Yaragatti SO, Bailhongal Sub Division, Belgaum Postal Division, Residing at Mugalihal village, Belgaum District … Applicant (By Shri.P.Kamaleshan) Vs. 1. Union of India, Reptd by Director General of Posts, Ministry of Communication, Department of post, Dak Bhavan, New Delhi – 110 001. 2. Post Master General, N.K. Region, Dharwad – 580 001. 3. Chief Post Master General, Karnataka Circle, Bangalore – 560 001. 4. Senior Superintendent of Post offices, Belgaum Postal Division, Belgaum – 590 001. …Respondents (By Standing Counsel Shri M.V. Rao for the respondents) O R D E R (ORAL) 2 OA NO.1437/2017/CAT//BANGALORE HON’BLE DR.K.B.SURESH …MEMBER(J) Heard. The applicant who was working continuously from 2010 till now is before us. The crux of the issues is available in our order in OA.No. 1319/2014, which was disposed of vide order dated 01.07.2015, which we quota: ORDER (ORAL) HON’BLE DR K.B.SURESH, MEMBER (J) Heard. The applicant is a daughter, and is married at the time of demise of her father who was GDS BPM, Mugalihal Post office. The respondents would say that the applicant is married and living with her husband separately. But it appears that applicant’s father passed away on 28.06.2010 but the very next day on 29.06.2010, the applicant was engaged as substitute in accordance with the rules. It is agreed by both the parties that a time limit of one or two days was granted in between the successive appointment and the fact remains that she had served as GDS BPM for more than five years. 2. Learned counsel for the respondent relies on judgement of Hon'ble High Court of Karnataka which he had produced, wherein, almost a similar case was taken. The applicant would say that there are distinction in this matter which needed to be taken up. The deceased Government employee has two children, one is the daughter, the applicant and other is son, the son is physically handicapped with a high degree of disability that he cannot even stand. Therefore, he is not competent to get an employment under the Disability Act and specially under Section 47 of the said act. Certain parameters are prescribed by Government so that a special consideration awaits such people. But the respondents would claim that such may not be the case as the applicant is not a handicapped person, but is a protector, evidently he has no other person to protect him and deceased Government employee's aged wife. Therefore it seems to us, it is appropriate that under the provisos of said act the applicant may be considered as a person protecting and caring for handicapped. The rules on substitute arrangement, the department has issued a guideline which is extracted here:- “Substitute Arrangement – guidelines Kindly refer to this office letter no. 17-115/2001-GDS, dated 21.10.2002 regarding substitute/provisional arrangements in place of regular Gramin Dak Sevaks. 2. The above instructions broadly envisage inter-alia that: i) No ineligible person should be engaged as substitute ii) Such arrangements should not continue for long periods iii) Before resorting to substitute arrangements the option of combination of duties should be explored and if such arrangement is found to be unavoidable it should be ensured 3 OA NO.1437/2017/CAT//BANGALORE by the appointing authority that a person engaged as substitute possesses the prescribed qualifications iv) Continuation of substitute arrangement beyond 180 days at a stretch may be allowed by the next higher authority only in exceptional cases where action has been initiated for making regular appointment if justified on work load and financial norms v) No substitute arrangement shall continue for one year. If it is unavoidable to continue substitute arrangement beyond one year, approval of the Head of the Circle will be necessary. 3. Similar instructions were issued in the said letter in respect of provisional appointments also. Member (P) has desired to obtain compliance of above said instructions from all circles. 4. I would be grateful if you could kindly confirm whether the above instructions are being followed in letter and spirit while resorting to substitute/provisional arrangements.” 3. In paragraph 11 of the circular (DG(P) No.17-115/2001-GDS dated 27.10.2002) it is stated that:- “11. In cases where the incumbent dies in harness there is no objection to a dependent being allowed to function on interim basis provided the dependent fulfills the qualifications/relaxed qualification applicable for post fallen vacant? This may only be resorted to if arrangement by combination of duties is not feasible. However, in such case also such interim appointment should not exceed one year and every effort should be made to take a final view within that time frame. It also needs to be clearly stipulated that such provisional appointment does not entitle the dependent to claim for the post unless his/her case for compassionate appointment is approved by the Circle Relaxation Committee”. Therefore, the elements of this consideration are, the applicant must be held to be qualified, that she had performed satisfactorily on each of the sectors of the employment and the need was felt to continue her on the basis of her performance as otherwise she would not have been continued for five years and there was no possibility of a combination appointment to be made based on the legal situations available regarding performance of duties. Therefore, eligibility of the applicant may not be in question contends the applicant. 3. Then in paragraph 12 of the same circular, it is mentioned that:- "12. The extent provisions provide for a provisional appointee to be placed on a waiting list for being considered for a regular appointment after he/she has completed three years of continuous employment. To avoid prolongation of such provisional appointments, approval of the next higher authority should be taken in respect of all provisional appointment exceeding 180 and where the period exceeds 4 OA NO.1437/2017/CAT//BANGALORE one year express approval of the Head of the Region/circle, as the case may be, would be necessary. Where the regular incumbent is not reinstated, immediate action must be taken to regularize the regularly selected provisional appointee against the said post without resorting to fresh recruitment.” 4. In paragraph 13 it is mentioned that if any of the above rules are to be violated, the strict action will be taken against the concerned officials. Therefore, being official act we will presume that in good faith and in public interest, it might probably the applicant's services were in tune in the public interest and very satisfactory, that must be the reason that she was allowed to continue for more than 5 years. In Annexure A5 which is the enquiry report by the respondents it is indicated that after the death of her father, the applicant had started living in the family house looking after the family. Therefore the elements of consideration which went into the Hon'ble High Court's order and this case are entirely different. 5. Therefore, what would appear to be the issues involved in Grih Kalyan Kendra Workers' Union vs. Union of India, reported in (1991) 1 SCC 619 the Hon'ble Apex Court held that the Directive Principles and the fundamental rights are to be harmoniously construed. In Keshavananda Bharati Sripadgalvaru vs. State of Kerala reported in (1973) 4 SCC 225, the Hon'ble Apex Court held that the object of Directive Principles is to embody the concept of a welfare State. In Article 38(2) “The state shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities”. Therefore, what is the concept of equality before law in such a situation it had been explained by the Hon'ble Apex Court in Nair Service Society vs. State of Kerala reported in AIR 2007 SC 2891 as “it has many facets and is a dynamic concept” the law seeking to achieve the said purpose is to be interpreted not only on articles 14, 16 but also having regard to combination of laws. In charan Singh vs. State of Punjab, reported in AIR 1997 SC 1052 Hon'ble Apex Court held that in similar circumstances economic empowerment of weaker sections must be ensured by judicial introduction. 6. In Article 39 (a) constitution determined “that the citizens, men and women equally, have the right to an adequate means of livelihood” in Dharwad District P.W.D Literate Daily Wage Employees' Association vs. State of Karnataka reported in (1990) 2 SCC 396, the Hon'ble Apex Court held: 1. The Authority should take a broad view. 2. In ascertaining whether any differences are of practical importance, the authority should take an equally broad approach, for the very concept of similar work implies differences in detail. These small difference, however, should not defeat a claim of equality on trivial grounds. 3. One should look at the duties actually performed and not at those theoretically possible. Therefore, the Hon'ble Apex Court held that when matters for 5 OA NO.1437/2017/CAT//BANGALORE employment are concerned the assessment of the performance of the duty should be on a broader perspective, mere continuation of the applicant deholes the limitation prescribed in the rules in fact the satisfaction of the authorities of the quantum of work and the quality of work performed by the applicant, in such case it is a general public interest which must be the overriding effect.