Central Administrative Tribunal - Chandigarh
Unknown vs General Manager on 13 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH O.A. No.589/HR/2012 (Reserved on 13.2.2013) Chandigarh, this the day of March, 2013 Ram Dhani S/o Late Sh. Lahoree, R/o Village Gopalpur, P.O. Attola, Tehsil Musafirkhana, District Sirsa. APPLICANT BY ADVOCATE: SHRI KARNAIL SINGH VERSUS 1.General Manager, Northern Railway, Baroda House, New Delhi.(Deleted vide order dated 9.11.2012) 2.Assistant Divisional Engineer/Northern Railway/Sirsa (Mariana). 3.Divisional Railway Manager, Northern Railway, Bikaner Division, Bikaner (Rajasthan). RESPONDENTS BY ADVOCATE: SHRI LAKHINDER SINGH ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
1. Facts, relevant for purposes of determination of validity or otherwise of the plea for condonation of delay as also merits of the relief applied for in the OA being integrated and inseparable, it is proposed to undertake adjudication of both the facets together. I am not unmindful of the fact that adjudication of an application for condonation of delay in the first instance would normally be an appropriate course of action to be adopted. Nonetheless, that view could admit of variation in a peculiar case wherein the decision qua plea for condonation and merits has to turn upon the same factual scenario. The discussion to be recorded in the paras to follow would bear out this view.
2. Sh. Lahoree (hereinafter referred to as the deceased employee), father of the applicant, was medically decategorized on 11.3.1999. In terms of the relevant policy instructions, he was offered an alternative job of Safaiwala in the medical department (as against the post of Gangman which he held at the time of medical decategorization). Though both the posts aforementioned were in the Grade of Rs. 2610-3540, the deceased employee refused to accept the alternative appointment and applied for retirement. The request made by him came to be granted, vide order dated 8.3.1999 (Annexure R-1).
3. RBE No. 8 of 2000 (Subject: Appointment on compassionate grounds in cases of medical invalidation decategorization) provides that a medically decategorized employee who is fit to perform the duties of an alternative suitable post in lower medical category, but he chooses to retire voluntarily on his being declared medically decategorized, the request for appointment on compassionate ground to an eligible ward will not be admissible. In that eventuality, an employee of that category may then either be continued in a supernumerary post or allowed to retire voluntarily if he so desires but without extending the benefit of appointment on compassionate grounds to a ward.
4. The applicant not having been able to place on record any documentation in support of the averment that he had been making repeated representations for being considered for an appointment on compassionate basis, it has to be held that no representation, in fact, came to be made till the filing of representation dated 28.1.2012 (Annexure A-4). There is, thus, apparently a delay of about 12 years in filing the plea for compassionate appointment.
5. The factual scenario would, however, appear to have turned around favourably vis-`-vis the applicant with the issuance of RBE No. 3 of 2009 by the Railway Board. While referring to the various policy instructions issued by the Railway Board on the subject of appointment on compassionate grounds from time to time, the RBE aforementioned provided for the delegation of the relevant powers to the indicated authorities and it further authorized them to grant consideration to such an appointment even in 20-year old cases. The period of 20 years was to be counted w.e.f. the date of the death of the Railway employee. It was, however, made clear that prior approval of the Ministry of Railways has to be obtained in the context if the death of the ex-employee has taken place over twenty years ago. The RBE did, however, indicate what had to go into consideration in the matter of consideration of a such like appointment. It is deemed appropriate to extract hereunder the contents in entirety of RBE No. 3 of 2009.
Subject: Appointment on Compassionate Grounds Delegation of Powers. Reference: (i) Boards letter No. E(NG)-III/78/RC-1/1 dated 07.04.1983 (para III)
(ii)Boards letter No. E(NG) 11/84/RC-1/26 dated 22.12.1994 (Bahris RBO 100/94,p-194).
(iii)Boards letter No. E(NG)-II/84/RC-1/26 dated 6.10.1995 (Bahris RBO 300/94, p-298) and
(iv)Boards l;etter No. E(NG)-II/99/RC-1/Genl./23 dated 30.11.1999 (Bahris RBO 300/94,p. 298) and
(v)Boards letter No. E(NG)-II/98/RC-1/64 dated 28.7.2000 (Bahris RBO 114/2000,p-159(para 2(ii) Attention is invited to Boards letters referred to above. In order to simplify procedure of appointments on compassionate grounds, Board have decidede that in supersession of provisions contained in letters ibid, powers are delegated to DRMNs/CWMs/HODs to consider compassionate appointment in favour of widow/widower or any ward of her/his choice in respect of cases up to 20 years old from the date of death of the Railway employee. Further, wherever in individual cases of merit, it is considered that justification exists for extending consideration to cases where death of the ex-employee took place over 20 years ago, prior approval of the Ministry of Railways should be obtained by forwarding a detailed proposal with specific justification and personal recommendation of the General Manager in the prescribed proforma as circulated vide Boards letter No. E(NG)II/87/RC- 1/143 dated 19.4.88(Bahris RBO 80/88,p.80).
2. Board have further decided to delegate powers to DRMs/CWMs/HODs for considering cases of appointment on compassionate grounds of wards/widows of missing railway employees which hitherto rest with General Managers para 3(v) of Boards letter No. E(NG)II/97/RC-1/210, dated 26.07.98 refers. (Bahris RBO 164/98, p-177).
3. It is reiterated that at the time of considering such requests for compassionate appointments, the Competent Authority should satisfy himself/herself on the basis of a balanced and objectives assessment of the financial condition of the family that the grounds for compassionate appointment in such case is justified, having regard to the number of family, as also his liability, including the aspect of whether the earning member is residing with the family of the deceased employee and whether he provides any support to other members of the family. Other provisions contained in Boards letter No. E9NG)-IIII/98/RC-1/64, dated 7.2000 (Bahris RBO 114/2000,p-159) may continue to be followed.
4. Such cases which have already been finalized in terms of letters under reference need not be reopened.
6. It was, thus, for the first time in the year 2009 (vide RBE No. 3 of 2009) that the permissibility of an appointment on compassionate basis was announced. The Competent Authority simultaneously, authorized the delegates indicated in that RBE itself to grant consideration to even more than 20 year old pleas therefor. The relaxation was obviously due to the fact that the permissibility of a compassionate appointment came to be announced for the first time in the year 2009 in derogation of the RBEs issued prior thereto.
7. In the light of the contents of the extraction in the para No.5, the learned counsel appearing on behalf of the applicant argued that it would be appropriate to direct the Competent Authority to grant consideration to the plea raised by the applicant within the parameters contained in the course of the documentation extracted in para 5. The learned counsel appearing on behalf of the respondents would, however, rely upon the view obtained by the Honble Apex Court in the State of Haryana & Ors. Vs. Rani Devi, & Anr. JT1996 (6) 646 and Umesh Kumar Nagpal Vs. State of Haryana, 1994 SCC (4) 138 to aver that the plea raised by the applicant is extremely belated and it would not be appropriate to grant the requested direction to the Competent Authority.
8. I have given our careful consideration to the respective pleas raised on behalf of the parties. I find myself in agreement with the pleas raised on behalf of the applicant. The reasons therefor are indicated hereunder.
9. The grant of consideration in such like matters has to be compulsively governed by the relevant policy instructions. While there can be no dispute with the proposition that a compassionate appointment cannot be claimed as of right, it too cannot be wished away that there has to be religious adherence on the part of the Competent Authority in following the policy instructions on the given subject. It would be apparent from a perusal of the contents of RBE No. 3 of 2009 that the delegatee officers had been authorized to consider compassionate appointment in favour of the widow/widower or any ward of her/his choice in respect of cases up to 20 years old from the date of death of the Railway employee. That the instructions aforementioned came to be issued in supersession of the provisions contained in the earlier instructions, is also apparent from a perusal of the extraction in para 5 of this order. It is also evident therefrom that the supersession came about in favour of those who are entitled to exercise those powers. The extraction, otherwise, made it clear that the consideration can even be granted in twenty year old cases or cases which were more than 20 years old. The only rider imposed in the latter category of cases was that the prior approval of the Ministry of Railways should be obtained by forwarding a detailed proposal with specific justification and personal recommendation of the General Manager in the prescribed proforma as circulated vide Boards letter No. E(NG)II/87/RC-1/143 dated 19.4.88.
10. The view obtained by the Honble Apex Court in State of Haryana & Ors. Vs. Rani Devi, & Anr. (supra), does not enable the learned counsel for the respondents to sell his wares in impeding the view I have obtained. In State of Haryana & Ors.Vs. Rani Devi & Anr.(supra), the point in issue was entirely different. The petitioners therein were raising a claim for compassionate appointment, being wives of deceased employees who were working as Apprentice Canal Patwaris, one of whom had worked for the period from 25.7.1987 to 25.2.1989 and the other from 15.7.92 to 2.6.93. The appointment of the deceased employees had come about on ad hoc basis. The Honble Apex Court noticed the relevant scheme introduced by the Government of Haryana to assist the members of the family of the deceased employees, further noticed that the scheme envisaged providing of an employment to one of the dependents of a deceased employee, but held that the definitional expression employee shall not include casual, ad hoc employee or a person who has been appointed as an Apprentice.
11. In Umesh Kumar Nagpals case (supra) too, the point in issue was of a different connotation. It was held by the Honble Apex Court therein that a compassionate appointment cannot be granted after a lapse of a reasonable period which must be specified in the rules. In the present case, however, the policy instructions have authorized the Competent Authority to undertake consideration of cases which are twenty year old or even more than twenty years old. The claim raised by the applicant is, thus, for consideration within the parameters of the policy instructions. In view, thus, of the fact that claim for consideration raised by the applicant is authorized by the policy instructions (RBE. 3 of 2009), it cannot be said that the claim is belated.
12. I would, accordingly, deem it just and appropriate to allow the plea for condonation of delay and dispose of the OA with a direction to the Competent Authority to grant consideration to the plea raised by the applicant, though that consideration would be within the restricted contours of the contents of RBE No. 3 of 2009 which stand quoted in the course of para No. 5 of this order.
13. In the peculiar facts and circumstances of the case, the consideration at the hands of the Competent Authority ought to ideally come about within two months from today.
14. The parties shall bear their own costs of the cause in the facts and circumstances of the case.
15. Disposed of accordingly.
(JUSTICE S.D.ANAND)
MEMBER(J)
Dated: March , 2013
ND*