Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 472 OF 2010
[Arising out of SLP (C) No.2128 of 2004]
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
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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
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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
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first respondent being retired on invalidated pension, is
set aside.
___________________J.
(R. V. Raveendran)
New Delhi; ____________________J.
January 15, 2010. (Surinder Singh Nijjar)