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

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)

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