Central Administrative Tribunal - Allahabad
Kripal Singh vs General Managar, N Rly on 20 December, 2023
O.A./508/2021
(Reserved on 18.12.2023)
Central Administrative Tribunal, Allahabad
Original Application No.508 of 2021
th
Pronounced on this the 20 Day of December, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Kripal Singh, a/a 44 years son of late Chandrawati, wife of late Ram
Prakash, Resident of Village- Shobhanpur, Post- Ghosli, District-
Budaun.
...........Applicant
By Advocate: Shri U.P. Srivastava
Versus
1. Union of India through General Manager Northern Railway
Baroda House New Delhi.
2. Divisional Railway Manager Northern Railway Moradabad.
...Respondents
By Advocate: Shri Krishna Kumar Ojha
ORDER
Present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunal Act seeking the following reliefs:
"i. Issue a order or direction set aside the order dated 31.5.2018 passed by Divisional Railway Manager Northern Railway Moradabad rejecting the claim of applicant for compassionate appointment as Annexure no.1 in compilation 1 of original application.
ii. Issue a suitable order or direction to the respondents/ authorities concerned to appoint the applicant on any suitable post on the compassionate appointment in the place of deceased employee.Page 1 of 8
O.A./508/2021 iii. To pass any such order direction which this Hon'ble Tribunal may deem fit and proper.
iv. To award cost of application."
2. Brief facts of the case are that the applicant is the adopted son of Late Smt. Chandrawati who was working as cleaner (Safai wali) under the Senior Section Engineer, (Carriage and Wagon) Hardwar on regular basis. The mother of the applicant died during her service period on 14.06.2013. Late Smt. Chandrawati, wife of Ram Prakash, left behind two sons namely Netrapal Singh and adopted son Kripal Singh (the applicant) after her death. The adoption of the applicant was made on 16.01.1987, his academic qualification in Class X and his date of birth as per Class X Marksheet is 01.01.1976. The first son of the deceased employee namely Shri Netrapal Singh, not being eligible and qualified for appointment on compassionate grounds, submitted his no objection dated 04.04.2018 before the Divisional Railway Manager, Northern Railway, Moradabad. The applicant applied for compassionate appointment through an application dated 14.05.2018 being the adopted son of the deceased employee whose adoption deed was registered on 20.06.2011 in the office of the competent authority and whose name is mentioned as nominee in the service book of the deceased employee Smt. Chandrawati. Vide order dated 31.05.2018, the Divisional Railway Manager Northern Railway Moradabad refused to consider the claim of the applicant for compassionate appointment on the ground that the real son is alive and the applicant is an adopted son of the deceased employee, therefore, according to rules, if real son is alive compassionate appointment may not be given to the adopted son.
3. I have heard learned counsel appearing for the parties.
4. Submission of learned counsel for the applicant is that the applicant is the adopted son of the deceased employee and his adoption deed was registered during the lifetime of the deceased and as per rules, he is entitled for compassionate appointment if Page 2 of 8 O.A./508/2021 the first son is not eligible for the same. He further states that Shri Netrapal Singh, who is the real son of the deceased employee has already submitted his no objection and the applicant is also one of the heirs as per the Service Book of late Smt. Chandrawati and as such his claim for compassionate appointment cannot be rejected. He further states that the applicant is unemployed without any other source of income for his livelihood and without considering the claim of the applicant, respondent No.2 passed the order dated 31.05.2018 with the finding that if the real son is alive the adopted son is not entitled for compassionate appointment. Learned counsel for the applicant also placed reliance on the judgement and order dated 08.09.2011 passed by the Hon'ble High Court in Writ Petition No. 52048 of 2011 (Vikas Jauhari Vs. State of U.P. and others). Thus, he states that the impugned order dated 31.05.2018 is liable to be set aside being unjust and arbitrary.
5. Submission of learned counsel for the respondents is that the impugned order dated 31.05.2018 is totally correct and as per the prevailing rules as per which the adopted son cannot be considered for compassionate appointment when the real son is alive. He further states that Shri Netrapal, the real son of the deceased employee had also applied for compassionate appointment but his claim was rejected as his educational qualification was not found to be correct. He submits that compassionate appointment is given for the family of the deceased employee to tide over the sudden crisis and meet the immediate exigencies and it is not an opportunity to be employed, therefore, compassionate appointment to the adopted son cannot be given only on the basis that he has been made nominee in the service record of the deceased employee. Thus, he states that the instant Original Application filed by the applicant lacks merit and deserves to be dismissed.
6. I have considered the rival submissions of learned counsel for the parties and perused the entire record.Page 3 of 8
O.A./508/2021
7. The mother of the applicant Late Smt. Chandrawati who was working as cleaner (Safai wali) under the Senior Section Engineer, (Carriage and Wagon) Hardwar on regular basis died during her service period on 14.6.2013. The present applicant, who is the adopted son of the deceased employee, made an application for appointment on compassionate grounds on 14.05.2018 which was rejected by the respondents vide the impugned order dated 31.05.2018 on the ground that the applicant is the adopted son of the deceased employee and so long as the real son is alive, his claim for compassionate appointment cannot be considered. The present Original Application has been filed in the year 2021 and the delay occurred in filing the application was condoned vide the order dated 26.07.2021.
8. As per dictums of Hon'ble Apex Court, it is a settled position of law that compassionate appointment is granted to meet the sudden crisis on account of death of breadwinner while in service. While considering the claim for compassionate appointment, the financial condition of the family of the deceased employee must be taken into consideration. The object to grant compassionate appointment is to provide immediate help to the dependents of deceased employees so that they may not die of starvation.
9. Recently in the State of West Bengal Vs. Debabrata Tiwari and Ors. Etc. in Civil Appeal No. 8842-8855 of 2022 decided on 3.3.2023, Hon'ble Apex Court in paras 7.1 and 7.2 has held as under:-
"7.1. It may be apposite to refer to the following decisions of this Court, on the rationale behind a policy or scheme for compassionate appointment and the considerations that ought to guide determination of claims for compassionate appointment.
In Sushma Gosain vs. Union of India, (1989) 4 SCC 468, this Court observed that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. That the purpose of providing appointment on compassionate grounds is to mitigate the hardship caused due to the death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress.Page 4 of 8
O.A./508/2021 .In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138, this Court observed that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. That mere death of an employee in harness does not entitle his family to such source of livelihood; the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that, but for the provision of employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family, provided a scheme or rules provide for the same. This Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant. That the object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome.
iii. In Haryana State Electricity Board vs. Hakim Singh, (1997) 8 SCC 85, ("Hakim Singh") this Court placed much emphasis on the need for immediacy in the manner in which claims for compassionate appointment are made by the dependants and decided by the concerned authority. This Court cautioned that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the sudden financial crisis that has befallen the dependants on account of the untimely demise of its sole earning member. Therefore, this Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession.
iv. This Court in State of Haryana vs. Ankur Gupta, AIR 2003 SC 3797 held that in order for a claim for compassionate appointment to be considered reasonable and permissible, it must be shown that a sudden crisis occurred in the family of the deceased as a result of death of an employee who had served the State and died while in service. It was further observed that appointment on compassionate grounds cannot be claimed as a matter of right and cannot be made available to all types of posts irrespective of the nature of service rendered by the deceased employee.
v. There is a consistent line of authority of this Court on the principle that appointment on compassionate grounds is given only for meeting the immediate unexpected hardship which is faced by the family by reason of the death of the bread earner vide Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301. When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea 19 being not to provide for endless compassion, vide I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162. In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384, wherein it was declared that appointment on Page 5 of 8 O.A./508/2021 compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. vi In State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR 2006 SC 2743, the facts before this Court were that the government employee (father of the applicant therein) died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned Single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. This Court remarked that the said facts were relevant and material as they would demonstrate that the family survived in spite of death of the employee. Therefore, this Court held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in furtherance of the object of a scheme for compassionate appointment.
vi In Shashi Kumar, this Court speaking through Dr. D.Y. Chandrachud, J. (as His Lordship then was) observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. That the basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. That it is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. The pertinent observations of this Court have been extracted as under:
"41. Insofar as the individual facts pertaining to the Respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by way of pension be included in the income statement of the family. The Respondent waited thereafter for a period in excess of seven years to move a petition Under Article 226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment."
7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge:
Page 6 of 8O.A./508/2021 i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.
ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.
iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.
iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of 22 the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source".
10. The Hon'ble High Court in the judgement and order dated
08.09.2011 in Writ Petition No. 52048 of 2011 (Vikas Jauhari Vs. State of U.P. and others), on which the applicant has relied, has observed as under:
" In the result, the writ petition is allowed. The impugned order dated 6/13.6.2011 is set aside and the respondent is directed to consider the claim of the petitioner for compassionate appointment. However, before giving the appointment of the adopted son, the authority concerned should examine the validity of the adopted son with reference to the provisions of Hindu Adoptions and Maintenance Act, 1956."Page 7 of 8
O.A./508/2021
11. The adoption deed annexed with the O.A. (Annexure No.4) clearly mentions that "...जो कि मझ ु प्रथम पक्ष की आयु लगभग ६० वर्ष है । मेरे कोई सगी संतान नहीं है और मेरे पति की मत्ृ यु हो चक ु ी है ।..." If the fact disclosed as above in the adoption deed is taken into consideration, the deceased employee had no real issue and due to this reason, the applicant was adopted. Contrary to this fact, as supplied in the Original Application, it is clearly stated that one Natrapal Singh is the real son of the deceased employee who had also applied for compassionate appointment on the death of his mother. Thus, on this ground itself, the facts disclosed in the O.A. become false as the deceased employee had a real son.
12. It is also a settled position of law that compassionate appointment is not a Rule and cannot be sought as a matter of right. The compassionate appointment is a concession and exception to public appointment provided under Articles 14 and 16 of the Constitution of India, therefore, to seek a concession of compassionate appointment, claimant must prove his financial condition and must prove that in the event of non-grant of compassionate appointment, claimant would face financial crisis. So far as the present case is concerned, a substantial time has already passed since the death of the deceased employee in the year 2013, therefore, it may be presumed that the financial crisis of the family would have come to an end.
13. Thus, in view of the above and in the light of observations mentioned in the aforesaid judgments of the Hon'ble Supreme Court, I am of the considered opinion that the OA is liable to be dismissed. Accordingly, the OA is dismissed. All associated MAs also stand disposed of. No order as to costs.
( Justice Om Prakash VII) Member (J) Madhu Page 8 of 8