Central Administrative Tribunal - Jaipur
Shri Ganni Khan vs The Union Of India on 24 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ORIGINAL APPLICATION NO.654/2013 DATED THIS THE TWENTY FOURTH DAY OF SEPTEMBER, 2013 HON'BLE DR.K.B.SURESH, MEMBER (J) HON'BLE SHRI ANIL KUMAR, MEMBER (A) 1.Shri Ganni Khan, Son of Shri Suleman Khan, Aged about 27 years, By caste Muslim (OBC), Resident of Shivana, Tehsil Kishangarh Bas, Alwar, Rajasthan. 2.Suleman Khan, Son of Shri Chaw Singh, Resident of Shivana, Tehsil Kishangarh Bas, Alwar, Rajasthan. .Applicants By Shri Vinod Goyal, Advocate) Vs. 1.The Union of India, Through General Manager, North Western Railway, Jaipur, Rajasthan. 2.Divisional Railway Manager, North Western Railway, Jaipur, Rajasthan. .Respondents O R D E R (ORAL) DR.K.B.SURESH, MEMBER (J):
This matter relates to preferential employment, prayed for by the applicant on the ground that his father was an employee with the Railway respondents and who took voluntary retirement on the ground of his personal reasons and now the applicant is claiming employment in the nature of compassionate appointment, which he claim as a matter of right. Several schemes had been framed by the Railways from 2004 onwards, ostensibly to help out employees whose particular nature of work is especially tiresome and, therefore it might be advisable to allow them to retire early and in their place to grant an appointment to their wards. This was for two categories at first but later on it was extended to cover about ten categories now. Besides as against the 5% quota in Direct recruitment for compassionate appointment, this is a 100% replacement of an employee who retires on full benefits and as found in most of the cases within one year of the superannuation. This sort of hereditary appointment had queered the pitch for the actually qualified and meritorious candidates for an employment and consequent livelihood which the State is bound to protect as they may be competitively more meritorious. If the likely backdoor entries can claim more merit, nothing will stop them from actually competing in the regular selection process. Therefore, these Schemes, as it now stand do not represent the extreme variety represented by the 5 % determination for compassionate appointment. Thus these issues are disposed to secure ultimate justice for all..
2. The factor of compassionate appointment is different. The factor which led the liberalised retirement Scheme for guaranteed employment for safety staff (LARGESSE) scheme is that the employee of the Railway took voluntary retirement and then suggests/proposed his son/daughter for giving appointment in his/her place. This scheme solely defeats Article 14 & 16 of the Constitution of India that a government appointment should be given on competitive merit amongst the candidates. The scheme is also against the credence of equality amongst all the citizens of India prevailing for the last sixty years. It is not reflected in the present case. Nobody can claim such appointment as a matter of right as it is squarely against constitutional .matrix and devoid of any nectarism to prevent fraud.
3. There is great distinction/difference between compassionate appointment and these types of appointment. It can also be said that in some cases it will be open for the railway to grant compassionate appointment to the dependents of the Railway servant who has been injured in or during government job, duty or retired due to illness caused solely by the effect of the date. But in the present case appointment cannot be claimed as a matter of right. The whole scheme is now available unconstitutional as it takes away the competitive spirit to grant a government job and is only the backdoor entry to get a government job.
4. The Railway Board seems to have decided at one stage to provide an employment to the wards of medically decategorised employees under but which power or from which Statutory provision that this can be done is not indicated. It is to be remembered that the Railways being the largest employment body of the Government and being its agency can not be seen to indiscriminately and without supportive power and requirement of Public interest to issue such prejudicial schemes as the Railway Board will be powerless to issue such orders even though generally it is to be assumed that at least it to have all normal power, normally regulating employment regarding its servants.
5. The Hon'ble Apex Court in Uma Devi's case had come down heavily on such back door entries, now it seems that against the soul and spirit of that judgment and many other judgments are equally violated. The Railway Board had devised one Scheme and thereafter amended the Scheme and even thereafter vide another Scheme excluded some class in other Scheme whereby only a person belonging to the medically decategorised of the time frame of 2001 to 2006 would be excluded but thereafter people who are medically decategorised will be covered under the earlier pre amended Rules with reference to decision taken. But the scheme itself is against the constitutional mandate.
6. It is noted that whenever strong Unions demands one thing the administration crumple as if it is powerless to take any decision. Union demands some thing and this will be again amended if another strong Union make another demand to suit its recommendations which is pertinent to that and their time frame alone. The Railways and Railway Board thus cause Public interest a great harm and prejudice as all these schemes seems to emanate from union pressure alone.
7. While the Railways is a largest employer under the Government, it is necessary to have fair labour relations and it is a welcome step but then others must not be prejudiced, the ordinary citizen must also be allowed to earn a livelihood in Railways. The Railways must offer a focus on Public good and public interest. Public interest may not always be with the individual employees causes or their strong Unions causes. The scheme thus militates against the interest of the competent common man by promoting the incompetent.
8. This is a case wherein an employee who had been medically de categorised just prior to his retirement requests that following the Rule and the Circulars requires that his son may be appointed in the Railways. This is clearly a back door entry and the Railways do not have the power to create opportunities for back door entry without significant reasons present in it as it is against public interest without any redeeming features. The Scheme for compassionate appointment is promulgated as an exception with the intention to provide immediate help to those family who are in penury after the Government employee suddenly passed away leaving his family in penury and hardship. There is also sufficient safeguards which are working for it to ensure that only 5% of direct quota goes to a most eligible among them all and in a pragmatic manner so that there can not be any complaints or violation of public interest at any stage. But this Scheme of medically decategorised, being without any competitive analysis will lead to hereditary employment through back door and can be manipulated by one Railway employee so that he can engineer himself to be medically decategorised and the Railways have found it necessary to set apart this medically decategorised post recommendations subject to scrutiny as well in other words whereby an employee at the verge of retirement can claim medical decategorisation and then claim appointment for his son or daughter. This will definitely take away the rights which are available to the unemployed young men and women of this Country who are competitively more meritorious to get that particular job. Therefore without any doubt the action of the Railways in issuing these Circulars is ultra virus , un constitutional and also against the provisions of the Constitution besides being arbitrary, illegal and against reason and logic.
9. The learned counsel for the applicant submits that under Article 309 of the Constitution the Government and its functionaries have the power to frame the Rules for its functioning. This is another aspect reflecting the lacunae in the governance to be urgently redressed by the Government. Under Article 309 of the Constitution it is envisaged only as a as a temporary situation so in the interregnum of administrative process proper statutory formations would be laid down. But un knowingly even after 66 years of independence and the formation of the Republic such has not been done and administration and government have been acquainted of Rules which are contrary to each other. It appears that some of this strategy is being adopted herein wherein contrary circulars are issued by the Railway Board . All the Circulars against principles of fairness and reasonableness must be held to be invalid under law. Further if a retiring employee, can, on the verge of retirement seek employment for his son or daughter it would provide for a hereditary Government employment and in that case there will be hereditary continuation in governance and as such in any case it is not the intention of the Constitution. Such adventures must be treated as unconstitutional and ultra virus. Any Circular which deals with stipulations for hereditary employment, whether provided in this case or not is thus held to be unconstitutional and invalid.
10. Article 13 of the Constitution of India makes it clear that laws inconsistent with fundamental rights be void and that State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause been held to be void. Therefore by dint of this constitutional provision the Railway Board do not have the power vested within it to create a Rule or Circular whereby back door entry can be encouraged but then compassionate appointment process can be appropriate as a reasonable classification emerges out of it which is significantly absent in this case.
11. Article 14 of the Constitution of India specially stipulate that the State or its functionaries shall not deny any person equality before the law which means that equality shall not also be denied to him. Therefore if such employment is to be granted to applicant's son, surely it will defeat the claims of the competent persons who would fare better in competitive examination than the applicant's son. The learned counsel for the applicant would submit that the applicant forms himself in to a separate class of already existing employees and therefore it will not be applicable to a stranger, the benefit of circulars are to be given to a particular group of employees who are medically de categorized but then employees whether present or future or even past are put in to as one class in classification in adjudicating their merits or demerits in the true sense. Since the applicant is not seeking protection for himself but a benefit for his son who is not yet an employee he can only be equated with a person standing out side and denied opportunity, if this would be continued it will be ultra virus and un constitutional. This is especially so since the alleged classification is artificial and against the stream of constitutionality.
12. No reason is apparent on the face of records to establish that this is not an arbitrary measure and for welfare in general of those who are appearing for the examination for appointment this itself is clear from the fact that the Board acted as a pendulum by force of compulsion and not on the basis of fair application of mind. Hon'ble Supreme Court in AJAY HASIA KALIF AND OTHERS reported in 1981 1 SCC 722 had held that whenever there is an arbitrary State action , Article 14 brings in to action and strike down such State action. The Hon'ble Apex Court in BACHAN SINGH vs. STATE OF PUNJAB .reported in 1982 (3) SCC 24 have held that under our Constitution, law can not be arbitrary or irrational and if it is, it would be clearly be invalid whether under Article 14 or Article 19 or Article 21.
13. Besides by virtue of Article 21 if the applicant's son has to be allowed to enter through the back door it will definitely undermine, diminish and curtail the livelihood and the right to live of the more competent persons and therefore would be a violation of constitutional provisions. Hon'ble Justice Bhagawathi in BANDHUA MUKTI MORCHA reported in 1984 3 SCC 161 has held that on a fair route to directive principles of State Policy and Article 21 held that there must be stipulated in any State action certain minimum requirements of fairness under law or else arbitrary decisions arise which will deprive and will be violative of the constitutional provisions.
14. Article 39 of the Constitution of India clause (a) stipulate that all citizens, men and women equally, must have the right to an adequate means of livelihood. It says that operation of the system must see to it that it does not result in the concentration of wealth to common detriment. Therefore any back door entry to be provided to applicant's son would defeat the finer solution principles because if when equality of right in employment is present such right is to be guarded by competence itself and when competition is suppressed by discriminating methodology that itself is against the constitutional provisions. The system shall not be so operated so that there will be a concentration of wealth as such hereditary employment facility are not therefore in the constitutional interest.
15. Whether be of compulsion or irrational application of mind such Circulars have been issued and apparently, made use of by interested parties by denying rightful protection to competitively meritorious persons and therefore we find that there was no rhyme or reason apparent in the records, pleadings and submissions to indicate that principles of fair governance have been followed. In short all these schemes are bereft of legality.
But then the complexity and complicity of the Railways can not be over looked, wherein even after Uma Devi's judgment back door entry in Government employment can flourish thereby denying opportunity to competitive, meritorious persons and any adjudicative authority will have to have an appropriate approach complaint to constitution. Therefore all such back door entry schemes, except the compassionate appointment scheme are hereby declared to be arbitrary, illegal, formed out of unreasonable confusion, ultra virus and unconstitutional and are all quashed enmasse. All such Schemes shall be immediately stopped.
All necessary steps to be taken by the Railway Board on an all India basis within two months of the receipt of a copy of this order.
Being devoid of merits, OA is dismissed. No costs.
(ANIL KUMAR) (Dr.K.B.SURESH) MEMBER (A) MEMBER (J)