Central Administrative Tribunal - Allahabad
Ram Chandra Singh vs General Manager N C Rly on 19 September, 2023
RESERVED ON 08.09.2023.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 19th of SEPTEMBER 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 330/00635 of 2014
Ram Chandra Singh S/o Late Dashrash Singh, R/o Village and Post
Akhaipur, District Hathras.
. . . Applicant
By Adv: Shri Manoj Dhruvbanshi
VERSUS
1. Union of India through General Manager, North Central Railway,
Subedarganj, Allahabad.
2. Divisional Railway Manager, North Central Railway, Allahabad..
3. Assistant Personnel officer, North Central Railway, Allahabad.
. . .Respondents
By Adv: Shri Ajay Kumar Rai
ORDER
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-
"(i) To issue order or direction in the nature of certiorari quashing the impugned order dated 08.11.2013 passed by the respondents with direction to the respondents to appoint the applicant on the compassionate ground as per Railway Board letter dated 07.04.1983 and 05.09.1983.
(ii) To issue other, order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, if any may also be granted.
(iii) To grant cost of the case in favour of the applicant".
2. The brief facts of the case are that father of the applicant was appointed as Group 'D' employee on 12.04.1955 and during the service 2 period, both eyes were injured due to an accident in the year 1982. Thereafter medical board was setup for physical examination and he was declared totally unfit. On 17.10.1988, father of the applicant had made application for appointment on compassionate ground to his elder son (the present applicant). When applicant became major, father of applicant submitted another application on 05.02.1993 for his appointment on compassionate ground. Father of applicant died on 09.01.1999. Mother of applicant also made several representations during the period from 2000 to 2003. Lastly applicant made a representation dated 23.12.2011 to the authority concerned, which was rejected by order dated 08.11.2013, which is assailed in this OA.
3. I have heard Shri Manoj Drubvanshi, learned counsel for the applicant and Shri Ajay Kumar Rai, learned counsel for the respondents and perused the record.
4. Submission of the learned counsel for the applicant is that applicant's father was appointed on 12.4.1955 as Group 'D' employee in the respondents' department. During the service period both eyes of father of the applicant were injured due to an accident took place in the year 1982. Thereafter a medical board was set up for physical examination wherein applicant's father was found totally unfit and letter was issued to this extent on 10.8.1982. Service certificate was also issued in favour of applicant's father showing in it the service period starting from 12.04.1955 to 5.5.1984 on the post of Cabinman. Father of applicant had made application for appointment on compassionate ground to his elder son (the applicant) through proper channel on 24.2.1988. Thereafter respondents issued letter clarifying that compassionate grounds appointment was permissible where a railway employee becomes medically decategorized for the job he was holding. The applicant attained majority in the year 1992. A representation was moved by the father of applicant for compassionate appointment but no heed was paid. Applicant's father died on 9.1.1999 thereafter mother of the applicant made several representations upto the year 2013 to the authorities concerned for compassionate ground appointment but respondents have not 3 considered the prayer made by the father and mother of the applicant. It is also argued that no suitable alternative appointment was also given to the applicant's father. He was compulsorily retired in the year 1984. Thus, referring to the relief clause, it was argued that impugned order dated 8.11.2013 be quashed and respondents be directed to appoint the applicant on compassionate ground as per Railway Board letter dated 7.4.1983 and 5.9.1983.
5. Learned counsel for the applicant further argued that since impugned order was passed in the year 2013 due to this reason present OA was filed within the limitation period in the year 2014 itself. It is also argued that although there is no delay in filing the OA yet it the Tribunal is of the view that there is delay in filing the OA then considering the facts disclosed in the affidavit annexed with the delay condonation application, delay occurred in filing the OA be condoned and OA be allowed. Respondents be directed to appoint the applicant on compassionate ground as his father was medically decategorized and had applied for compassionate appointment to his elder son.
6. Learned counsel for the applicant also placed reliance on RBE No. 77 of 2011. He has also relied upon the following pronouncements of Hon'ble Courts:-
(i) Bhawani Prasad Sonkar Vs. Union of India and others reported in (2011) 1 Supreme Court Cases (L&S) 667;
(ii) Vivek Kumar Vs. State of U.P and others reported in 2010 (7) ADJ 1 (DB).
(iii) Shail Kumari Pandey Vs. Union of India and others decided on 15.03.2019 in OA No. 330/138/2011 by CAT, Allahabad Bench.
7. Learned counsel for the respondents referring to the counter affidavit argued that applicant's father compulsorily retired in the year 1984 although he met with an accident in the year 1982. His medical examination was also done and he was found unfit for the job. Since he did not appear for screening, therefore, no alternative job was given to him. He remains absent and did not follow the instruction of the department, therefore, he 4 was compulsorily retired. On the day of retirement of the father of the applicant, applicant was minor, thus no question arises to give him compassionate appointment and he further argued that when the applicant became major applicant's father was not in service and prescribed time limit has been expired, therefore, department has rightly rejected the prayer for compassionate appointment finding barred by time. It is next argued that applicant's father did not appear before the screening committee, thus, prayer made in the application cannot be allowed. The present OA has been filed in the year 2013. Reason explained for condoning the delay occurred in filing the OA are not acceptable. It is also argued that since applicant's father was compulsorily retired from service, thus on this count also applicant's claim for compassionate appointment cannot be allowed and OA cannot be allowed at the belated stage, thus prayer was made to dismiss the OA.
8. I have considered the rival submissions advance by the learned counsel for the parties and have gone through the entire record.
9. From perusal of record, it is evident that applicant has attained majority in the year 1993, thereafter father of applicant first time applied for compassionate appointment on 05.02.1993. Father of applicant died on 09.01.1999. Mother of applicant submitted several representations during the year 2000 to 2003 and lastly applicant made a representation to the authority concerned on 23.12.2011. It is also evident from the perusal of record that and applicant has filed the present OA in the year 2014 i.e. after the lapse of about 21 years when he attained majority, thus, this OA is barred by period of limitation. Section 21 of Central Administrative Tribunal Act, 1985 specifically held as under:-
"(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of subsection (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired 5 thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where -
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or , as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (10020) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period".
10. In view of the provision of Section 21 of Administrative Tribunal Act, 1985, I am of the considered view that the Original Application suffers from the infirmity of delay and laches. It is obvious that the cause of action arose on the date when the applicant attained majority, although applicant's father has filed application/representation on 11.08.1993 and thereafter filed several applications/representations i.e. 19.06.2000, 18.03.2002, 08.11.2002, 24.03.2003 and 13.05.2003 yet he approached before the Tribunal for redressal of his grievance in the year 2014 i.e. after a gap of about 21 years.
11. Since applicant was sleeping over his right and did not approach before this Court in time, Hon'ble Supreme Court in the case of Capt. Harish Uppal v. Union of India &Ors.(JT 1994(3) S.C. 126) has held that if the parties ".......... choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere........".
6The Hon'ble Supreme Court in the case of Bhop Singh Vs. Union of India and others reported in (1992) 3 SCC 136, also held that:-
''Inordinate and unexplained delay or latches is by itself a ground to refuse relief to the petitioner irrespective of the merit of his claim."
Further, Hon'ble Apex Court in the case of Union of India Vs. Harnam Singh rep orted in AIR (1993) SCC page 1367, has been pleased to observe that "The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or Tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire."
12. I have carefully gone through the decision referred to hereinabove and in my considered view the O.A. has been filed after an inordinate delay, and for which no reasonable or plausible explanation has been offered by the applicant in his delay condonation application.
13. Apart from this, as per dictums of Hon'ble Apex Court, it is 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, financial condition of family of deceased employee must be taken into consideration. The object to grant compassionate appointment is to provide immediate help to the dependents of deceased employee, so that they may not die in starvation.
14. It is also 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.
15. In this matter as is evident from record, applicant' father was found unfit in the year 1982 by the Medical Board constituted by the respondents' 7 department. Applicant's father proceeded on medical leave and he was asked to appear before the screening committee for giving alternative appointment. He appeared for only ones but on subsequent occasions when he had been directed to appear before the screening committee, he did not appear. In that circumstances, applicant's father was not given alternative job. Since applicant's father himself has not appeared before the screening committee for alternative job and he did not join the duty and after expiry of the leave period, he was compulsorily retired from the service in the year 1984. If the submission raised across the bar is taken into consideration, applicant was minor at the time of retirement of the applicant's father. For the first time in the year 1993, an application was moved by the father of the applicant for compassionate appointment to the applicant. No doubt applicant's father was medically decategorized but he did not appear before the screening committee. It appears that due to that reason he could not be given alternative job. Applicant's father died in the year 1999. Compassionate appointment in case of incapacitated/medically decategorized employee could only be given to his wards if no alternative job has been offered to the decategorized employee. In the present matter department/respondents was always ready to give alternative job to the applicant's father but applicant's father did not appear before the committee on the given dates, therefore, it shall be presumed that applicant's father himself has declined to accept the offer. Due to this reason he could not appear before the screening committee. Since offer of alternative job to the father of the applicant has not been accepted by him (the father of the applicant), thus, applicant cannot take benefit of the rules and circulars applicable to the matter.
16. In the case of Bhawani Prasad Sonkar (supra), the Hon'ble Supreme Court allowed the Civil Appeal on the ground that respondents failed to establish that appellant's father was offered any alternative employment in terms of circulars applicable in the matter. In the present matter, applicant's father was repeatedly directed to appear before the screening committee for alternative employment but he himself did not appear, thus, no benefit 8 could be extended to the applicant in the law laid down by the Hon'ble Supreme Court in the case of Bhawani Prasad Sonkar (supra).
17. As far as law laid down by the Hon'ble High Court in the case of Vivek Yadav (supra) is concerned, in the present matter, compassionate appointment could only be made in favour of the applicant when respondents have not offered to the applicant's father for alternative employment. In the present matter since respondents have repeatedly asked to the applicant's father to appear before the screening committee for alternative employment but he did not appear, therefore, applicant's prayer at the belated stage cannot be allowed.
18. In the case of Shail Kumari Pandey (supra), the applicant of that OA was merely 10 years of age at the time of death of his father and attained majority in the year 2004. Thereafter he filed his application for compassionate appointment, which was dismissed in the year 2006. Unfortunately he filed a civil suit in District Court. When applicant of that case knows the legal lacuna, he filed the OA in the year 2011. After hearing the learned counsel for the parties, Tribunal condoned the delay occurred in filing the OA and OA was decided on merit. In the present case, applicant attained majority in the year 1992 and he submitted his first representation in the year 1993 and thereafter sent several reminders/representation. Respondents ultimately rejected the representation of the applicant dated 11.09.2013 by its impugned order dated 08.01.2013 on the ground that same is filed at belated stage. Since there is much more delay in filing the OA, mere filing the repeated representation to the department will not sufficient to extend the period of limitation. Applicant attained majority in the year 1992 and present OA has been filed in the year 2014 on basis of impugned order
19. Recently in the State of West Bengal Vs. Debabrata Tiwari and Ors. Etc. etc. in Civil Appeal No. 8842-8855 of 2022 decided on 3.3.2023, Hon'ble Apex Court in the case of in paras 7.1 and 7.2 has held as under:-
9"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.
i 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.
ii 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 10 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 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:11
"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:
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.12
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".
20. From the perusal of aforesaid discussions, it is evident that this OA is liable to be dismissed on the ground of delay and latches as applicant has attained majority in the year 1992 and deceased employee died in the year 1999 and this OA has been filed in the year 2014 i.e. after a gap of about 21 years from the date, applicant has attained majority. Since substantial period i.e. about 21 years has passed, it shall be presumed that financial crisis will have come to an end.
21. In view of the aforesaid deliberation mentioned hereinabove and in the light of observations mentioned in the aforesaid judgments of the Hon'ble Supreme Court, I am of the opinion that the OA is liable to be dismissed. Accordingly, OA is dismissed. All associated MAs stand disposed of. No order as to costs.
(Justice Om Prakash -VII) Member (J) Manish/-