Central Administrative Tribunal - Ahmedabad
Maheshkumar K Padwal vs Western Railway on 4 July, 2024
::1 :: OA No. 242/2022 with MA No.230/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 242/2022
With MA No. 230/2022
Dated this the 4th day of July, 2024
Reserved on: 24.06.2024
Pronounced on: 04.07.2024
CORAM:
Hon'ble Shri Umesh Gajankush , Member (J)
1. Shri Maheshkumar K. Padwal
S/o. Kirtansinh Padwal
Aged 28 years
Both R/o.: Prakruti nagar,
Govind Nagar,
Dahod - 389 151
... Applicant
(By Advocate Ms. S S Chaturvedi)
V/s.
1. Union of India,
Notice to be served through,
General Manager (E),
Western Railway,
Churchgate,
Mumbai - 400 020.
2. Chief Works Manager,
Office of the Chief Works Manager,
Western Railway,
Dahod - 389 160.
... Respondents
(By Advocate Ms. R R Patel)
::2 :: OA No. 242/2022 with MA No.230/2022
ORDER
Per: Hon'ble Shri Umesh Gajankush, Member (J)
1. On the subject of compassionate appointment, this is the second visit of the applicant before this Tribunal, challenging impugned communication dated 08.02.2022 (Annexure A/1), by which the case of the applicant for compassionate appointment has been rejected.
2. Brief facts of the case as stated in the Original Application are as under: -
2.1 The father of the applicant was working with the Railways as Sr. Section Engineer under the Loco Carriage & Wagon Workshop.
He was declared unfit for all categories due to the Diabetes with Retinopathy and glaucoma thereby vision loss (totally blindness). After due examination by the medical board, he was declared to be medically disabled and decategorized person. Thereafter, representation dated 02.03.2020 (Annexure A/5) was submitted for voluntary retirement which was accepted w.e.f. 26.02.2020 i.e., the date of unfit from the all category vide order dated 27.04.2020 (Annexure A/6).
2.2 Thereafter, applicant's father has submitted representation dated 24.06.2020 for compassionate appointment for the applicant. In pursuance to which respondents vide letter dated 06.08.2020 sought information regarding the treatment expenses and other property details for further action on compassionate appointment which was replied vide letter dated 19.08.2020 in which it has been specifically stated that the applicant has joint property and only 1.54 acre which was owned by his mother and she gets all income of said property. On the said land there is no source of water.
2.3 Vide communication dated 25.08.2020, the application of applicant was rejected by non-speaking order. Therefore, further ::3 :: OA No. 242/2022 with MA No.230/2022 representation/appeal dated 01.03.2021 was submitted to the General Manager (Annexure A/10).
2.4 Earlier OA No. 343/2021 was filed by the applicant which was disposed of vide order dated 02.09.2021 with following observations:-
"It can be seen that the applicant has availed the alternative remedy by way of filing an appeal/representation dated 01.03.2021 which is stated to be pending for its consideration before the respondent No.1. We do not find it appropriate to entertain this OA at this stage. It is expected that Respondent No.1 will take appropriate decision on the representation of the applicant in accordance with the scheme for compassionate appointment and the eligibility of applicant herein. In view of above, the OA stands disposed of at admission stage. MA No. 341/2021 for joint application stands allowed."
Thereafter, vide impugned communication 08.02.2022 (Annexure A/1) the claim was rejected.
2.5 In the Original Application, it is stated that RBE No. 08/2000 dated 18.01.2000 (Annexure A/13) on the subject of appointment on compassionate grounds in cases of medical invalidation/decategorization, which provides that in cases were an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement. In such cases request for appointment on compassionate ground to an eligible ward may be considered. Further, RBE No. 78/2006 (Annexure A/16) is also placed on record. Clause - 4 of the said RBE provides for consideration on compassionate ground to wife/wards, dependents of partially medical decategorized staff who seeks voluntary retirement. Therefore, on the basis of averments made in the Original Application, applicant has prayed for quashment of impugned communication dated 08.02.2022 (Annexure A/1) with direction to the respondents to consider the case of the applicant for compassionate appointment.
::4 :: OA No. 242/2022 with MA No.230/2022
3. After notice, respondent have filed their reply and justified their action. It was stated that the father of the applicant had not provided detailed as to actual financial and other condition of the family and mislead the respondent authority by submitting false information i.e., representation dated 24.06.2020 and submitted a false affidavit regarding immovable property dated 18.06.2020. It was further stated that the case of the applicant for compassionate appointment was regretted by the competent authority, as, family does not found in indigent condition.
3.1 It was submitted that although the father of the applicant was declared medically invalidated and unfit for all categories w.e.f. 26.02.2020 and opted for voluntary retirement, however, respondents have never made compulsion to the applicant's father to opt for voluntary retirement. It was further submitted that the father of the applicant was getting pension and after the death of the deceased employee his widow is getting enhanced family pension.
3.2 In respect of long sickness of the father of the applicant, financial conditions and other conditions of the family also, the official respondents contested the claim of the applicant and stated that applicant is 20 years old and is also married, therefore, he no longer can be termed as dependent. The official respondents also placed on record RBE No. 03/2009 (Annexure R/1) and on that basis it was submitted that the Original Application is liable to be dismissed.
4. Thereafter, rejoinder has been filed explaining and elaborating the facts stated in the Original application.
5. Learned counsel for the applicant vehemently argued that in representation dated 01.03.2021 (Annexure A/10) detailed facts have been stated by the applicant and based upon Railway Board's Circulars and other similarly situated cases applicant has prayed ::5 :: OA No. 242/2022 with MA No.230/2022 for compassionate appointment. However, while issuing impugned communication dated 08.02.2022, the claim of the applicant has been rejected on the ground of investigation made by S&WLI.
5.1 It is submitted that when RBE No. 08/2000 dated 18.01.2000 (Annexure A/3) specifically provides for compassionate appointment to an eligible ward of medically decategorized employee and said clause was further relaxed by the Railway Board through RBE No. 78/2006 dated 14.06.2006 (Annexure A/16) to wife/ward/dependents of partially medically decategorized staff. Under these circumstances, without taking note of the aforesaid clauses of the policies on the subject, rejection of the claim of the applicant merely on the financial status as recorded in the impugned communication is illegal, arbitrary and liable to be set aside.
5.2 In Original Application as well as in representation dated 01.03.2021, applicant has explained about the ancestral property, earning by his family and other financial sources. However, same has not been considered by the competent authority in appropriate perspective. There is no bar, if a person seeking employment is a married person under the policy and marriage of the applicant was solemnized as per the customs prevailing in their society in early age. Therefore, rejection on the said aspect also is not sustainable.
6. On the other hand, the learned counsel for the respondents on the basis of reply submitted that the case of the applicant was rightly rejected. She has drawn attention towards RBE No. 03/2009 clause no. 3 and submits that the competent authority objectively assessed the financial condition of the family and based upon which impugned communication was issued which needs no interference by this Tribunal. It was further submitted that policy of compassionate appointment is intended to give the immediate relief to the family of the deceased upon death of the employee. It is onetime succor when the family lunges into economic crises upon ::6 :: OA No. 242/2022 with MA No.230/2022 death of the bread earner. On one hand, the compassionate appointment is not a matter of right and would affect principle of equality in employment. Therefore, present Original Application is liable to be dismissed.
7. After hearing learned counsel for the parties and perusal of the record, it is not in dispute that the father of the applicant was declared to be medically unfit after due examination by the medial board. It is also not in dispute that RBE No. 08/2000 dated 18.01.2000 (Annexure A/13) provides for grant of compassionate appointment to the wards of medically decategorized employee. Further, aforesaid clause was relaxed and the benefit is extended to partially medically decategorized staff vide RBE No. 78/2006. These two policies have been framed by the Railway Board keeping in view the necessity of the department. It is true that the compassionate appointment cannot be claimed as a matter of right. However, it is equally true that if the department frames a particular policy considering the need of the employees of their department, then the competent authority of the department is required to consider the cases of the wards of the voluntarily retired staff who has been declared as medically decategorized/partially due to permanent disability in objective manner. Merely, on the ground that the ex-employee is/was getting retiral/pensionary benefits, it cannot be concluded that family of the employee is in a good financial condition so as to deny the benefit of compassionate appointment.
8. In the earlier round of litigation, this Tribunal vide order dated 02.09.2021, directed the respondent no.1 to take appropriate decision on the representation of the applicant in accordance with the scheme for compassionate appointment and the eligibility of the applicant herein. However, looking to the impugned communication dated 08.02.2022 (Annexure A/1), it is apparent that there is no consideration of policy on subject i.e., RBE No. ::7 :: OA No. 242/2022 with MA No.230/2022 08/2000 and RBE No. 78/2006 in the impugned communication. It appears that merely on the basis of investigation report and financial position of the applicant, the competent authority has come to the conclusion that the claim is liable to be rejected.
9. It is important here to mention that after reply, the applicant has filed MA No. 230/2022 for production of the record, calling the investigation report based upon which impugned communication was issued. However, same is not produced by the official respondents which prevented the applicant from making his say on the investigation report. Since this Tribunal is proposing to direct the competent authority for reconsideration of the applicant's case afresh, therefore, it is expected that prior to taking any decision, the copy of the same may be made available to the applicant. Accordingly, MA No. 230/2022 is disposed of.
10. In view of the aforesaid discussion, the competent authority has failed to take into consideration the relevant RBEs on the subject of compassionate appointment in respect of dependents of decategorized employees. Therefore, impugned order dated 08.02.2022 (Annexure A/1) is set aside and respondents are directed to reconsider the case of the applicant for compassionate appointment within a period of 90 days from the date of receipt of certified copy of this order. With the aforesaid direction, Original Application is disposed of. No order as to cost.
Umesh Gajankush Member(J) PA