SIDHESHWAR NATH NIRALA V. UNION OF INDIA THROUGH CHIEF COMMISSIONER OF INCOME TAX

WPC/742/2020

AI Insights

The case revolves around Sidheshwar Nath Nirala, whose father was a Lower Division Clerk in the Income Tax Department and was declared medically unfit, leading to a voluntary retirement. Sidheshwar sought a compassionate appointment in the department, which was initially overlooked due to administrative delays and later rejected based on age and procedural grounds. After several representations and a failed initial writ application, the CAT directed the department to consider the petitioner's case as per the rules applicable at the time of his father's retirement. However, the department, following a point-based system for compassionate appointments, did not select Sidheshwar due to his lower ranking. The CAT subsequently dropped the contempt proceedings against the department for not complying with its earlier directions, leading to the present writ petition challenging that decision.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 763522 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 06-02-2024
• Assessment Year: misc
• Other Referred Cases: L Chandra Kumar v. Union of India & Others, Canara Bank and Anr. v. M. Mahesh Kumar, State Bank of India & Ors. v. Jaspal Kaur, T.C. Basappa v. T. Nagappa, West Bengal Central School Service Commission & Ors Vrs. Abdul Halim & Ors
• Laws Referred To: Article 226 of the Constitution of India, Central Civil Services Pension Rules, 1972, Right to Information Act, 2005, Central Administrative Tribunal Act, 1985, Contempt of Courts Act, 1971
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ANURAG VIJAY
• Assessee Lawyers: A K SAHANI
• Keywords: Administrative delay; Compassionate appointment; Contempt proceeding; Voluntary retirement; Medical invalidation
• Section: 38

Judgement Text

"W.P.(S) No.742 of 2020 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.742 of 2020 ----- Sidheshwar Nath Nirala, aged about 51 years, son of Shri Raja Prasad, resident of Peace Road, Holly Cross By-lane, Lalpur, P.O. & P.S.- Lalpur, District-Ranchi. … … Petitioner Versus 1. Union of India though Chief Commissioner of Income Tax, Central Revenue Building, Bir Chand Patel Marg, Patna, P.O. & P.S.- Patna, District-Patna-800 008; 2. Commissioner of Income Tax, Revenue Building, Main Road, P.O.-Ranchi, P.S.- Chutia, District-Ranchi-834 001; 3. Dy. Commissioner of Income Tax, Head Quarters (Administration), Bir Chand Patel Marg, Patna, P.O. & P.S.- Patna, District- Patna-800 008; 4. Assistant Commissioner of Income Tax, Head Quarters (Administration), Bir Chand Patel Marg, Patna, P.O. & P.S.- Patna, District-Patna-800 008. … … Respondents ------- CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SANJAY PRASAD ------- For the Petitioner : Mr. A.K.Sahani, Advocate For the Respondents : Mr. Anurag Vijay, Advocate ------ Order No. 10/Dated 6th February, 2024 Per Sujit Narayan Prasad, J. 1. This writ petition is under Article 226 of the Constitution of India for quashing of the order dated 19.09.2019 passed by the Central Administrative Tribunal, Circuit Bench, Ranchi in contempt proceeding being case No. CP/051/00046/19 whereby and whereunder the contempt proceeding initiated against the respondents has been dropped. 2. The brief facts of the case as per the pleadings made in the writ petition, which are required to be enumerated, read hereunder as:- W.P.(S) No.742 of 2020 2 It is the case of the petitioner that on 21.10.1965, the father of the petitioner joined on the post of Lower Division Clerk (LD C) in Spl. Circle of Income Tax Department at Patna. Upon transfer, in the year 1978, the father of the Petitioner joined in the office of Assistant Commissioner of Income Tax IT Circle-I, Ranchi. 3. On 31.10.1996, the father of the petitioner made an application for his voluntary retirement on medical ground under the provisions of Rule-38 of the Central Civil Services Pension Rules, 1972. 4. By letter No 9376 dated 23.12.1996, the Income Tax Officer, Head Quarters, Ranchi requested the Civil Surgeon- cum-Chief Medical Officer, Ranchi to constitute a Medical Board for checking up the health condition of the father of the Petitioner. 5. The Civil Surgeon-cum-Chief Medical Officer, Ranchi, vide letter dated 02.01.1997, requested the Head of the Department of Medicines and Eyes to examine the father of the petitioner. The Medical Board, accordingly, examined the father of the petitioner and submitted its report on 21.01.1997 observing therein that the father of the petitioner is invalid to work. 6. Thereafter, vide order dated 28.02.1997, the father of the petitioner was permitted to retire on medial ground W.P.(S) No.742 of 2020 3 under Rule 38 of the Rules, 1972 with effect from 28.02.1997. 7. After retirement from service on medical ground, the father of the petitioner was getting only invalid pension which was not sufficient to fulfill the basic needs of the family. Accordingly, on 17.04.1997, the father of the petitioner made an application for compassionate appointment of the petitioner in the Department. 8. The office of the Chief Commissioner of Income Tax, Patna prepared a list of the applicants for compassionate appointment on 01.12.1997. The name of the Petitioner was figuring at Sl.No:8 thereof. 9. Subsequently, the petitioner received a Proforma on 04.04.2000, from the office of the Chief Commissioner of Income Tax which was duly filled up by him and submitted in the office of the Chief Commissioner of Income Tax on 06.04.2000. 10. The case of the petitioner was considered by the competent authority, but they ignored Sl.No:8 while considering the applicants figuring at Sl. Nos.9, 14, 16 and 18 of the list. 11. Then the petitioner made a representation before the Chief Commissioner of Income Tax, Patna. Thereafter, on 22.10.2000, the Petitioner received a Proforma Form (Part A and B) from the office of the Chief Commissioner of W.P.(S) No.742 of 2020 4 Income Tax Patna which was duly filled up and submitted on 09.01.2001. Again the matter was placed before the Committee and the name of the Petitioner was recommended for appointment and his name figures at Sl.No: 4 of the List so prepared in February, 2002. 12. In the month of April, 2003, appointment of those candidates including the candidates appearing at Sl. No. 3 was made without considering the case of the petitioner due to which the petitioner submitted a representation on 14.03.2007 and on 16.01.2008. 13. When no response to the representation was received, the petitioner took resort to the provisions of the Right to Information Act, 2005. By an order dated 20.02.2008, it was informed that the candidature of the petitioner was rejected by the Selection Committee due to over-age of retirement of his father and on the date of superannuation, the father of the petitioner had attained the age of 55 years and 21 days and, therefore, there was delay of 21 days. It was also mentioned therein that on 11.12.2007, the Committee recommended the names of 21 candidates for compassionate appointment, but so far this petitioner is concerned, it was observed that the same was barred as the father of the Petitioner took voluntary retirement on 28.02.1997. W.P.(S) No.742 of 2020 5 14. It is the case of the petitioner that Memo No: 14014/6/86-Estt. (D) dated 30.06.1987, the Ministry of Personnel, Public Grievances and Pension Department of the Government of India lays down that appointment on compassionate ground can be given to a son /daughter of a Government servant who has retired on medical ground under Rule 38 of the CCS (Pension ) Rules, 1972 before attaining the age of 55 years. 15. The father of the Petitioner submitted his application for voluntary retirement on medical ground as far back as on \"31.10.1996\" when he had not completed the age of 55 years. Therefore, the delay of 21 days, allegedly caused was not the fault on the part of the father of the Petitioner and such departmental delay could not have been the basis to reject the claim of the Petitioner for his appointment on compassionate ground. 16. The Petitioner had preferred a writ application being W.P. (C) No.1483 of 2009 which was dismissed on 13.04.2015. 17. Thereafter, the Petitioner made an application under Sections- 19 of the Central Administrative Tribunal Act, 1985 before the Central Administrative Tribunal, Circuit Bench, Ranchi which was registered as O.A. No.135 of 2015. W.P.(S) No.742 of 2020 6 18. By order dated 27.11.2017, the Central Administrative Tribunal, Bench, Ranchi disposed of the aforesaid O.A No.135 of 2015 holding therein that for delay in preparing report, either by the party or by Civil Surgeon, the Petitioner could not be made to suffer by robbing him of the benefits to which he was entitled in law. Direction was also made to the respondents to treat the father of the petitioner as medically invalid from the date it has been declared by the Civil Surgeon vide certificate dated 29.01.1997 and the applicant be granted appropriate benefits as he would have been entitled in terms of CCS (Pension) Rules, 1972 under Rule 38 a period of three (3) months from the date of next meeting of the Board of the Officers where it meets for the purpose. 19. Thereafter, the petitioner filed representation and submitted all required documents before the Income Tax Department and when no decision was taken by the respondents on the representation of the petitioner, petitioner filed contempt case before the learned Central Administrative Tribunal being CCPA No: 051/00046 of 2019. 20. The respondents appeared in the said contempt case and filed their Show Cause. 21. Thereafter, vide impugned Order dated 19.09.2019, the learned Tribunal dropped the aforesaid contempt W.P.(S) No.742 of 2020 7 proceeding, against which the instant writ petition has been filed. 22. It is evident from the factual aspect that the father of the petitioner, namely, Raja Prasad was working as Lower Division Clerk under the Income Tax Department. He in course of discharge of official duty, has become medically sick. As such, he has been declared to be medically unfit by the concerned Civil Surgeon. But the benefit of the said declaration of being medically unfit since has not been given, hence, the applicant has preferred an original application being OA/051/00135/2015 seeking therein two reliefs :- (i) For direction upon the respondents to consider the case of the applicant for benefit of compassionate appointment in lieu of medical invalidation of his father as per rules. (ii) For any other order/s direction/s as Your lordships may deem fit and proper in the interest of justice. 23. The said original application was disposed of vide order dated 27.11.2017 whereby and whereunder the following directions have been passed, for ready reference, paragraphs-17, 18 and 19 of the aforesaid order are being referred hereunder as :- 17. In view of the above, admittedly the employee was medically examined and was found unfit on 21.01.1997 itself, i.e. prior to attaining 55 years of W.P.(S) No.742 of 2020 8 age, and there was no impediment in declaring him medically unfit for the purpose of consideration of his son or daughter for required assistance in terms of Rule 38 [ibid] from the date he was medically examined and found as such. The medical certificate issued later on in format was only a recognition of the factum of his invalidity that occurred prior to his attaining 55 years. For a delay in preparing the report, either by the authorities or by the Civil Surgeon, the applicant could not be made to suffer by robbing him of a benefit, he was entitled to in law. 18. In such view of the matter, the O.A is disposed of with direction upon the respondents to treat the applicant as having been declared medically invalid from the date he was declared so by the Civil Surgeon, which fact was certified, vide certificate dated 28.02.1997. 19. The applicant be granted appropriate benefit as he would be entitled to in terms of Rule 38, CCS [Pension] Rules within a period of three months from the date of next meeting of Board of officers where it meets for the purpose. 24. The writ petitioner being aggrieved with the alleged inaction on the part of the respondents, had preferred an application for initiation of contempt proceeding as per the provision as referred under Section 17 of the Administrative Tribunal Act, 1985. 25. In the aforesaid contempt case, the learned Tribunal had issued notice so as to provide an opportunity to file show cause. The respondents had appeared and show cause was filed. 26. The learned Tribunal, by taking into consideration the averment made in the said show cause, has dropped W.P.(S) No.742 of 2020 9 the contempt as also discharged the notice issued upon the respondents, against which the present writ petition has been filed invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India. 27. Mr. A.K.Sahani, learned counsel appearing for the writ petitioner, has submitted that the order passed by the learned Tribunal in dropping the contempt is absolutely an improper order since the direction so passed by the learned Tribunal dated 27.11.2017 passed in OA/051/00135/15 since has not been complied with, therefore, the contempt case was filed but still the directions have not been carried out but without taking into consideration the aforesaid fact, the contempt case has been dropped, therefore, the present writ petition. 28. Mr. Anurag Vijay, learned counsel appearing for the Income Tax Department, has defended the impugned order. He has submitted by referring to the stand inter alia taken by them in the show cause, copy of which has been appended in the paper book, that it is not the case of the petitioner that his case was not considered, rather, the case of the writ petitioner was considered for providing appointment on compassionate ground but based upon the policy decision as contained in the office memorandum wherein point based system has been adopted so as to fill up 5% vacancy by way of compassionate appointment in W.P.(S) No.742 of 2020 10 which the writ petitioner has been found to be at Sl. No.26 and hence, he has not been found to be within the zone of consideration for the purpose of his appointment on compassionate ground. 29. Learned Tribunal, taking into consideration the aforesaid ground, since has dropped the contempt which cannot be said to suffer from an error, hence, the instant writ petition may be dismissed. 30. We have heard learned counsel for the parties and gone across the pleading as also the documents appended thereto including the show cause filed on behalf of the Income Tax Department before the learned Tribunal in the contempt proceeding. 31. This Court, before entering into the legality and propriety of the said order, needs to refer herein the power conferred to this Court under Article 226 of the Constitution of India so far as it relates to interfering the order passed by the Central Administrative Tribunal is only to be exercised by way of power of judicial review as per the judgment rendered by the Constitution Bench of Hon'ble Apex Court in the case of L Chandra Kumar v. Union of India & Others reported in (1997) 3 SCC 261 whereby and whereunder the Constitution Bench has laid down the proposition that any order passed by the Tribunal is amenable to screening under the power of judicial review to W.P.(S) No.742 of 2020 11 be exercised by the High Court under Article 226 of the Constitution of India, the relevant paragraph of the aforesaid judgment needs to be referred herein which reads hereunder as :- “99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by W.P.(S) No.742 of 2020 12 overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.” [emphasis supplied] 32. The reason for referring the aforesaid paragraph herein is that since the order dropping contempt proceeding is the subject matter in this petition, a question may arise that whether dropping the contempt proceeding can also be looked into by the High Court in exercise of power of judicial review, therefore, it is necessitated to refer the aforesaid paragraph for the reason that the Constitution Bench of the Hon'ble Apex Court has laid down the proposition that any order passed by learned Tribunal is amenable to scrutiny under Article 226 of the Constitution of India under power of judicial review. 33. Herein, the order dropping the contempt proceeding is the subject matter and, as such, this Court, in view of conferment of power to exercise the power of judicial review under Article 226 of the Constitution of India, has entertained the instant writ petition so as to come to the logical end regarding the legality and propriety of the impugned order. 34. The contempt proceeding has been filed for alleged non-compliance of the order dated 27.11.2017 passed by the learned Tribunal in OA/051/00135/2015 which has been filed for seeking two reliefs as quoted and referred W.P.(S) No.742 of 2020 13 hereinabove. The direction was passed therein as per paragraph 17, 18 and 19 thereof which have been quoted and referred hereinabove. 35. It is evident from the operative part of the order that while disposing of the original application, direction was passed upon the respondents to treat the applicant as having been declared medically invalid from the date he was declared so by the Civil Surgeon, which fact was certified, vide certificate dated 21.02.1997. 36. At paragraph 19 the direction was to grant appropriate benefit as he would be entitled to in terms of Rule 38, CCS [Pension] Rules within a period of three months from the date of next meeting of Board of officers where it meets for the purpose. 37. However, at paragraph 17 an observation has been made that there was no impediment in declaring him medically unfit for the purpose of consideration of his son or daughter for required assistance. 38. The petitioner, in pursuance to the observation so made at paragraph 17 of the aforesaid order dated 27.11.2017 whereby and whereunder the observation was made for consideration of the case of son or daughter of the employee for required assistance in terms of Rule 38 of the CCS (Pension) Rules from the date the employee was medically examined and found as such. W.P.(S) No.742 of 2020 14 39. The grievance was agitated before the learned Tribunal in the aforesaid contempt case that the son of the employee had not been provided appointment on compassionate ground. 40. The learned Tribunal had called upon the respondents for filing show cause and in pursuance thereto, the show cause was filed. 41. In the show cause, the ground inter alia was taken that the case of the applicant/writ petitioner (son of the employee) had been considered by sending his details before the duly constituted committee wherein the committee has found that the applicant/writ petitioner had obtained the place at Sl. No.26 of the merit list. Since 5% vacancy was to be filled up under the compassionate ground hence, only 09 vacancies have been filled up. The petitioner being at Sl. No.26, hence, the appointment on compassionate ground has not been provided to him. 42. Learned Tribunal, after taking into consideration the aforesaid fact, has dropped the contempt proceeding. The aforesaid order dated 19.09.2019 passed by the Central Administrative Tribunal, Circuit Bench, Ranchi in contempt proceeding being case No. CP/051/00046/19 is under challenge. 43. The law is well settled that so far as the contempt proceeding is concerned, it is a proceeding in between the W.P.(S) No.742 of 2020 15 court and the proposed contemnor and that is the reason while entertaining the contempt case, show cause is issued by the concerned court so as to come to the conclusion that whether there is any deliberate or willful non-compliance of the order passed by the court of law having power to initiate the proceeding for contempt under the Contempt of Courts Act, 1971. 44. The learned Tribunal, after considering the stand taken in the show cause wherein the case of the writ petitioner was considered for appointment on compassionate ground based upon the observation so made at paragraph 17 of the order dated 27.11.2017 but he was found to be not under the quota earmarked for filling up the vacancy restricted to 5% of the total cadre strength, since, the writ petitioner was found to be at Sl. No.26 while only 9 vacancies had has been assessed to be under 5% of the total cadre vacancy which was to be filled up. 45. The aforesaid assessment is based upon the point based criteria as per the office memorandum dated 08.04.2015 which has introduced a point-based criteria for assessment of cases of compassionate appointment on merit in a fair and transparent manner. 46. The law is well settled that the appointment on compassionate ground is to be provided based upon the policy decision, if floated by the concerned establishment. W.P.(S) No.742 of 2020 16 47. It is not in dispute that the appointment on compassionate ground is to be considered and granted on the basis of the scheme meant for that. In this regard, reference may be made to the judgment rendered by the Hon’ble Apex Court in Canara Bank and Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412, wherein the question fell for consideration was whether the scheme passed in 2005 providing for ex-gratia payment or the scheme then in vogue in 1993 providing for compassionate appointment is applicable to the respondent (para-12). 48. The issue about applicability of the scheme has been considered by the Hon’ble Apex Court in another judgment rendered in State Bank of India & Ors. v. Jaspal Kaur, (2007) 9 SCC 571, wherein it has been laid down that the claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. 49. The Hon’ble Apex Court applying the principle laid down in State Bank of India & Ors. v. Jaspal Kaur (supra) has considered the factual aspect in Canara Bank and Anr. v. M. Mahesh Kumar (supra), wherein the fact leading to the said case was that the father of the dependent died on 10.10.1998 while he was serving as a Clerk in the bank and the dependent had applied timely for W.P.(S) No.742 of 2020 17 compassionate appointment as per the “Dying in Harness Scheme” dated 08.05.1993 which was in force at that time. The bank rejected the dependent’s claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the dependent. Again on 07.11.2001, the bank sought for particulars in connection with the issue of the dependent’s employment. In the light of the principles laid down in the case of State Bank of India & Ors. v. Jaspal Kaur (supra) the cause of action to be considered for compassionate appointment arose when circular no.154 of 1993 dated 08.05.1993 was in force. Thus, as per the judgment referred in State Bank of India & Ors. v. Jaspal Kaur (supra), the claim cannot be decided as per 2005 scheme providing for ex-gratia payment. The circular dated 14.02.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993. 50. Even though there is no specific direction for consideration of the case of the writ petitioner for appointment on compassionate ground, as would appear from paragraph-17 of the order dated 27.11.2017, rather, specific direction as per paragraphs 18 and 19 is to take decision under the provision of Rule 38 of the CCS (Pension) Rules. But, even then the case of the writ W.P.(S) No.742 of 2020 18 petitioner has been taken into consideration in pursuance to the scheme as was in vogue during the relevant time which was on the basis of the point-based system considering the financial viability of the dependent of the deceased employee. 51. The Committee, based upon the aforesaid principle, has found the case of the petitioner by placing him at Sl. No.26 of the aforesaid merit list. It is also in the aforesaid scheme that 5% of the vacancy of the total cadre strength was to be filled up by way of compassionate appointment which has come to 09 vacancies. 52. The writ petitioner since was at Sl. No.26 in the merit list and only 09 vacancies were to be filled up, therefore, petitioner was not appointed on compassionate ground. 53. The learned Tribunal has taken note of the aforesaid fact and by taking into consideration the same, has dropped the contempt proceeding as also discharged the notice issued upon the concerned respondent. 54. Since we are exercising the power of judicial review for which the position of law is well settled that if there is any error apparent on the face of the order or the order suffers from the lack of jurisdiction, then only the power of judicial review is to be exercised as per the ratio laid down by Hon'ble Apex Court in the case of West Bengal Central School Service Commission & Ors Vrs. Abdul Halim & W.P.(S) No.742 of 2020 19 Ors., reported in (2019) 18 SCC 39, wherein, at paragraph-30 it has been held as under:- “30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan vs. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.” 55. Likewise, the Hon’ble Apex Court in the case of T.C. Basappa v. T. Nagappa, reported in (1955) 1 SCR 250, wherein, it has been held as under:- “An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e. g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.” W.P.(S) No.742 of 2020 20 56. It is evident from the aforesaid judgment that the power of judicial review is to be exercised if the error apparent on the face of such order. 57. This Court, on the basis of the aforesaid parameter to exercise the power of judicial review, is of the view based upon the reason as referred hereinabove, that it is not a case where the power of review is to be exercised upon the order passed by the learned Tribunal impugned in this writ petition. 58. Accordingly, the instant appeal is hereby dismissed. (Sujit Narayan Prasad, J.) (Sanjay Prasad, J.) Birendra/A.F.R. "