Madhya Pradesh High Court
Shri Ram Bahadur Shrivas vs Union Of India on 4 December, 2018
1
W. P. No. 24624/ 2018
HIGH COURT OF MADHYA PRADESH
W. P. No. 24624/ 2018
(Shri Ram Bahadur Shrivas
Vs.
Union of India & Others)
JABALPUR; Dated: 04/12/2018
Ku. Nikita Shrivastava, learned counsel for the
petitioner.
Shri Govind Patel, learned counsel for the
respondents.
Heard on the question of admission.
By the instant petition, the petitioner is challenging the order dated 18.12.2017 (Annexure-P/13) whereby the learned Tribunal has dismissed the Original Application. The petitioner is also challenging the order dated 16.07.2018 (Annexure-P/14) whereby the review application filed by him has also been rejected.
As per the record, by order dated 18.12.2017, the Central Administrative Tribunal (for brevity hereinafter referred as "CAT"), Jabalpur, Bench Jabalpur, dismissed the original application submitted by the petitioner claiming consideration on his application for grant of compassionate appointment to his son. Vide order dated 16.07.2018, the Tribunal has also rejected the review application submitted by the petitioner.
As per the facts of the case, the petitioner was working as Senior Passenger Guard at West Central Railway, Jabalpur and was sent for periodical medical examination on 04.10.2011 and after medical examination, he was 2 W. P. No. 24624/ 2018 declared unfit for Aye Two medical category for Train working, but found fit for Aye Two under medical category with NV and DV glasses. Thereafter, he was offered alternative job vide order dated 26.03.2012, but he did not join on the said post. He submitted an application dated nil seeking voluntary retirement and appointment of his son on compassionate ground. When his request was not acceded to, then he again submitted an application on 17.01.2013 and his request for voluntary retirement on medical ground was accepted with effect from 31.01.2013. Since his request for granting compassionate appointment to his son was not answered by the respondents, therefore, the petitioner filed original application before the CAT and the same was allowed directing the respondents to consider the claim of the applicant for appointment of his son on compassionate ground in terms of the circular dated 14.06.2006.
Against this order, respondents had filed a writ petition before this Court which was registered as W.P. No.7529/2016 and disposed of vide order dated 12.01.2017 quashing the order passed by the Tribunal on 11.02.2016 remitting the matter to the Tribunal for reconsideration. Thereafter, the Tribunal taking note of the circular dated 14.06.2006 and also the clarification dated 12.11.2014, dismissed the original application holding that the circular dated 14.06.2006 stood clarified by the Railway Board vide clarification dated 12.11.2014 in the following manner:-
"Please refer to your Railway's letter on the above subject. The matter has been looked into 3 W. P. No. 24624/ 2018 and it is clarified that a Railway employee can be termed as medically decategorised only when he/she has been declared unfit in his/her original post as well as original medical category but fit in lower medical category/post. Compassionate appointment cases of Railway employees are to be dealt keeping in view the same.
This Ministry's letter issued under RBE No.14/2012 does not in any way impact compassionate appointment of ward/spouse of such employee."
Accordingly, the claim of compassionate appointment of the son of the petitioner has been rejected because the petitioner was declared fit in visual category, but found unfit for the post he occupied.
Learned counsel for the petitioner submits that the clarification came on 12.11.2014 and the petitioner was voluntarily retired with effect from 31.01.2013 i.e. before coming into existence of the circular dated 12.11.2014, therefore, the case of the petitioner is covered with the provisions mentioned in earlier circular dated 14.06.2006 and his claim for compassionate appointment to his son cannot be rejected taking note of the clarification dated 12.11.2014 for grant of the same.
Arguments heard and documents perused.
As per the circular dated 14.06.2006, compassionate appointment to the wife/wards/dependents of a partially medically decategorized staff who seeks voluntary retirement, can be given subject to conditions stipulated therein.
In the present case, the petitioner was declared unfit for Aye Two medical category for the post of Guard and found fit for Aye Two under medical category with NV and DV glasses. Thus, he was a partially medically decategorized 4 W. P. No. 24624/ 2018 staff and his son was, therefore, fully entitled to get compassionate appointment as per the terms of the circular dated 14.06.2006. However, in view of the clarification dated 12.11.2014 issued by the Railway Board, wherein it is clarified that a railway employee can be termed as medically decategorized only when he/she has been declared unfit for his/her original post as well as original medical category, but fit in lower medical category/post does not find mention.
The order passed by the Tribunal holding that the clarification although came on 12.11.2014, but in view of the law laid-down by the Supreme Court in the matter of S.S. Grewal Vs. State of Punjab & Others [(1993) SCC Supp. (3) 234], the clarification of the earlier enactment is usually held to be retrospective. Moreso, the Supreme Court in a judgment reported in [(2012) 13 SCC 340] parties being Mukundlal & Another Vs. Pritpal Singh & Others, has observed that the clarification only explains the true purport of the existing instrument. As such, the clarification always relates back to the date of the instrument which is sought to be clarified.
In the case at hand, it clearly indicates that the Tribunal has observed that the theory of "relation back"
would be applicable in the present case as clarification dated 12.11.2014 has retrospective effect and would be applicable with effect from the original circular dated 14.06.2006.
Learned counsel for the petitioner failed to demonstrate as to why the finding given by the Tribunal is 5 W. P. No. 24624/ 2018 not correct especially when it is supported by the verdict of the Supreme Court.
Considering the above, we have no hesitation to say that the Tribunal has not committed any infirmity in rejecting the original application of the petitioner holding that the case of the petitioner has rightly been considered by the respondents taking note of the clarificatory letter dated 12.11.2014.
Accordingly, this petition fails and is hereby dismissed.
(R. S. JHA) (SANJAY DWIVEDI)
JUDGE JUDGE
Prachi
Digitally signed by PRACHI KUNTE
Date: 2018.12.13 15:09:53 +05'30'