Central Administrative Tribunal - Allahabad
Akadashi Yadav vs Divisional Railway Manager N E Rly on 10 December, 2024
(Reserved on 05.11.2024 )
Central Administrative Tribunal, Allahabad Bench
Allahabad
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Original Application No.150/2021
This is the 10th Day of December 2024.
Hon'ble Mr. Justice Rajiv Joshi, Member (J)
Akadashi Yadav aged about 46 years, son of Late Shivpoojan Yadav,
Resident of Village Surai, Police Station Mubarakpur, District Azamgarh.
...........Applicant
By Advocate: Shri Sita Ram Yadav
Versus
1. Union of India through Secretary Ministry Railway Board, Rail
Bhawan, New Delhi.
2. Divisional Rail Manager (Karmik) Northern Eastern Railway,
Varanasi.
3. Senior D.P.O. Northern Eastern Railway, Varanasi.
4. Senior Divisional Engineer (Signal and Telephone) Northern Eastern
Railway, Varanasi.
5. Devnath son of Ghurbin Yadav, Resident of Village Surai, Police
Station Mubarakpur, District Azamgarh.
......... Respondents
By Advocate: Shri Subhash Chandra Mishra
ORDER
Heard Shri Sita Ram Yadav, learned counsel for the applicant and Shri Subhash Chandra Mishra, learned counsel for the respondents.
2. The applicant has filed the present Original Application (O.A.) under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
"Quashing the effect and operation of the order dated 28.02.2020 as well as its consequential order dated 31.12.1990 passed by the respondent No.2, a direction regarding the appointment of the applicant on compassionate appointment under the dying in Harness Rules, 1973, seeking appointment at the place of Late Shivpoojan, who has been died on 14.03.1982, during the service period, leaving behind the applicant in harness.
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3. The brief facts of the case as reflected from the Original Application are as under:-
(i) The applicant's father, Sri Shivpoojan, was employed as a Class IV worker (Vishramdata) and served the respondent authorities in Azamgarh until his death on 14.03.1982. At the time of his father's demise, the applicant was a minor and his mother, an illiterate and Pardanashin woman, submitted a request to the respondents that her son be considered for compassionate appointment once he attained majority. Subsequently, after attaining the age of majority the applicant applied for such an appointment on 14.11.1990 but he was informed on 03.01.1991 that another individual, namely Devnath Yadav, had been appointed on his father's place on compassionate ground.
(ii) Upon learning about the aforesaid appointment, the applicant's mother filed a Criminal Case No.496/1991 on 15.02.1991 under Sections 420, 466, 467, 468 and 471 I.P.C. against Devnath. The case culminated in 2018 with the Chief Judicial Magistrate, Azamgarh convicting Devnath and sentencing him to seven years of imprisonment and a cost of Rs.40,000/-. Despite the conviction, the respondents allowed Devnath to continue in service on the ground of ongoing appeals and only removed him from service in 2020 after prolonged legal proceedings. Following this, the applicant again requested for compassionate appointment before the respondents but the respondents rejected it on the ground that Devnath had already given an appointment in his father's place.
(iii) The applicant submitted that the appointment of Devnath was void from the outset due to the forgery and that the respondents failed to exercise their duties to conduct proper verification at the time of the appointment of Devnath. It is stated further that the SUSHIL KUMAR SRIVASTAVA Page No.3 applicant being the legal heir of the deceased employee, is entitled to appointment under compassionate grounds. However, the respondents have not redressed the applicant's grievances, compelling him to approach this Tribunal for relief as mentioned in Para-2 of this order.
4. Counter Affidavit has been filed from the side of the respondent Nos. 1 to 4 on 05.04.2022 in which the respondents have denied the averments of the Original Application by stating as under:-
(i) The claim of the applicant for compassionate appointment is not maintainable and is barred by the principles of res judicata. The issue has already been adjudicated and dismissed by this Tribunal as well as the High Court of Allahabad.
(ii) The applicant's father, Late Shri Sheo Poojan Yadav, died on 14.03.1982 while in service. At the time of his death, the applicant was a minor aged about 10 years. Subsequently, the widow of the deceased employee, Smt. Ramrati, provided a certificate authorizing Shri Devnath Yadav (respondent No. 5), a near relative and member of the joint family, to apply for compassionate appointment. Based on her consent and following the rules, respondent No. 5 was duly appointed on compassionate grounds to act as the breadwinner of the family.
(iii) The appointment of respondent No. 5 was made after due verification by the Welfare Inspector, who confirmed that the family supported the application. Respondent No. 5 was appointed in compliance with Para-(III) and (V) of Master Circular No. 16, which permits the appointment of a near relative where the widow and children are unable to take up employment.
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(iv) The applicant filed his first application for compassionate appointment only on 14.11.1990, after a lapse of more than eight years from the death of the deceased employee. As per the rules, compassionate appointments are to be made within five years of the demise of the employee, with a maximum permissible extension of ten years under specific circumstances, none of which apply to the present case. The applicant's claim was rightly rejected by the Railway Department on 31.12.1990 and this decision was upheld by the Tribunal in OA No.1631/1994 decided on 31.01.2000 and the High Court in Writ Petition No. 19013/2002 decided on 03.01.2006, which were filed by the applicant.
(v) The Allahabad High Court, in its judgment dated 03.01.2006, clearly held that the applicant's claim for compassionate appointment was time-barred and no benefit could be granted to the applicant even if respondent No. 5's appointment was challenged. Furthermore, the Hon'ble Supreme Court in SAIL v. Madhusudan Das [(2008) 15 SCC 560], General Manager, SBI v. Anju Jain [(2008) 8 SCC 475], and Union of India v. Shashank Goswami [(2012) 11 SCC 307], has held that compassionate appointments are an exception to the rule of equality and cannot be claimed as a matter of right after an unreasonable delay.
(vi) It is emphasized that the purpose of compassionate appointment is to provide immediate relief to a family facing financial crisis due to the death of the sole breadwinner. In the present case, the family of the deceased employee was provided with terminal benefits and a monthly family pension. Moreover, respondent No. 5 was appointed to support the family as per the rules and no further appointment is permissible.
(vii)It is further stated that the applicant, who is now over 49 years old, is not eligible for appointment in the Railways. His repeated SUSHIL KUMAR SRIVASTAVA Page No.5 claims for compassionate appointment are devoid of merit and intended to reopen settled matters.
5. Learned counsel for the applicant has also filed Rejoinder Affidavit on 15.12.2022, in which he has denied the averments made by the respondents in the counter affidavit and reiterated the facts as mentioned in the Original Application.
6. It is evident from the record that notice was issued to Private Respondent No.5 on 15.02.2021. Thereafter, vide order dated 05.11.2024, this Tribunal has observed that "As per the office report dated 19.03.2024, a notice was sent to through registered post on 17.02.2021. Since any unserved notice has not been received and in view of the aforesaid, the notice is deemed to be sufficient upon respondent No.5."
7. The submission of the learned counsel for the applicant is that the father of the applicant has died during hareness making the family eligible for compassionate appointment under compassionate ground. At the time of his father's death, the applicant was a minor and his mother had informed the authorities to consider him for the appointment upon attaining majority. Despite this, the respondents wrongfully appointed another individual namely Devnath Yadav based on forged documents, which deprived the applicant of his legitimate rights.
8. The counsel further stated that the appointment of Devnath was fraudulent from the beginning as evidenced by the criminal proceedings where he was convicted and sentenced for forgery. The respondents' failure to verify the documents properly before appointing Devnath amounts to negligence. The applicant further contends that the fraudulent appointment cannot nullify his entitlement as the rightful legal heir of the deceased employee.
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9. It is also submitted by learned counsel for the applicant that the respondents have ignored their duty to rectify the injustice caused by the fraudulent appointment, even after Devnath's conviction and removal from service in 2020. By concluding his argument, the counsel requests this Tribunal to direct the respondents to consider the case of the applicant for compassionate appointment at the earliest.
10. Per contra, learned counsel for the respondents submitted that the compassionate appointment sought by the applicant is barred by time. The applicant's father, Shri Sheo Poojan Yadav, passed away on 14.03.1982 and the applicant first applied for compassionate appointment on 14.11.1990, nearly eight years after the death. As per the rules, such applications must be filed within five years and even the permissible relaxation of this period is subject to conditions that are not met in this case. The appointment on compassionate grounds had already been granted to respondent No. 5, Shri Devnath Yadav, based on the widow's consent and a clear certificate issued by her, making any subsequent claim by the applicant inadmissible.
11. Furthermore, this Tribunal and Allahabad High Court have already adjudicated this matter. The Allahabad High Court, in its order dated 03.01.2006, dismissed the applicant's writ petition on the grounds of delay and non-compliance with the compassionate appointment rules. It was held that even if respondent No. 5's eligibility is challenged, no relief can be granted to the applicant due to the time-barred nature of his claim. Therefore, the present application is barred by the principle of res judicata and the applicant cannot revive an issue that has been conclusively decided.
12. I have perused the rival submissions made by learned counsel for both parties and pursued the pleadings available on record.
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13. Having carefully considered the facts and submissions of both parties, the Tribunal finds the applicant's claim for compassionate appointment untenable for several reasons. Firstly, the application suffers from an unreasonable delay, as the applicant's father died in 1982 and his first application was made only in 1990, eight years later. Compassionate appointments are intended to provide immediate relief to families in financial distress and cannot be claimed as a perpetual entitlement. Secondly, the claim is barred by the principle of res judicata, as the issue was already adjudicated and dismissed by this Tribunal in Original Application No.1631/1994 vide order dated 31.01.2000 and Allahabad High Court in vide order dated 03.01.2006 in Writ Petition No.19013/2002 wherein the applicant has challenged the order dated 31.01.2000 passed by this Tribunal in the aforesaid OA, due to delay and non-compliance with rules. Thirdly, while it is unfortunate that the appointment of respondent No. 5 was based on fraudulent documents, the lapse of time and prior adjudications prevented the revival of the applicant's claim.
14. Furthermore, the scheme of compassionate appointment is an exception to the rule of equality in recruitment, intended solely to provide relief during a family's immediate financial crisis. In this case, the family was provided with terminal benefits and a pension, fulfilling the scheme's purpose.
15. It is evident from the records that the father of the applicant died in the year 1982 and more than 42 years have since elapsed. During this intervening period, the applicant and his family members have been sustaining themselves. Therefore, there appears to be no pressing need to grant a compassionate appointment at this significantly belated stage. The primary objective of compassionate appointment is to provide immediate relief to the family of the deceased employee in financial distress. However, in the present case, the family has managed to maintain itself over the past four decades. Furthermore, SUSHIL KUMAR SRIVASTAVA Page No.8 the applicant is now 52 years old, which further undermines the rationale behind granting such an appointment.
16. Although the applicant pursued his case before the Civil Court and the High Court during this period but the essential purpose of compassionate appointment to offer immediate succor to a bereaved family, has been defeated by the long passage of time. The Hon'ble Supreme Court, in Umesh Kumar Nagpal v. State of Haryana and Others, (1994) 4 SCC 138, emphasized that compassionate appointment is not a matter of right and should not be treated as a mode of regular recruitment. The Court held that its objective is to address immediate financial distress due to the death of the sole breadwinner.
17. In the present case, considering the substantial passage of time and the absence of any evidence to indicate that the applicant's family is in acute financial distress even after 42 years, the claim for compassionate appointment cannot be entertained. The principles laid down in judgments such as State of J&K v. Sajad Ahmed Mir [(2006) 5 SCC 766], and Union of India v. Shashank Goswami [(2012) 11 SCC 307] and recently in he case of West Bengal Vs. Debabrata Tiwari and Ors., AIR 2023 SC 1467 = AIR Online 2023 SC 174 [03.03.2023] emphasize that such appointments cannot be granted after an unreasonable delay and are not a vested right. Hence, the applicant's claim is devoid of merit and is liable to be dismissed. Accordingly, the Original Application is dismissed
18. There shall be no order as to costs.
(Justice Rajiv Joshi) Member (J) Sushil SUSHIL KUMAR SRIVASTAVA