Central Administrative Tribunal - Jodhpur
Smt Jyoti Tomer vs North Western Railway on 17 August, 2023
1
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.314/2022
Date of decision: 17.08.2023
Date of reserved 14.08.2023
CORAM
HON'BLE DR. NANDITA CHATTERJEE, MEMBER (A)
Smt. Jyoti Tomer W/o Lt. Shri Yadvender Singh aged about 38
years R/o 113, Sector-E, Rameshwar Nagar, Basani Ist Phase,
Jodhpur (Raj.) W/o Ex. Khallasi under Senior Section Engineer,
Track Machine (TMC) NWR, Jodhpur.
.......Applicant
By Advocate: Mr. S.K. Malik
Versus
1. Union of India through the General Manager (NWR) Jaipur-
302001.
2. Divisional Railway Manager, NWR, Jodhpur Division, Jodhpur-
342001.
3. Divisional Railway Manager (P), NWR, Jodhpur Division,
Jodhpur-342001
.....Respondents
By Advocate: Mr. B.L. Bishnoi
2
ORDER
Per Hon'ble Dr. Nandita Chatterjee, Member (A) Aggrieved with the rejection of her prayer for compassionate appointment, the applicant has approached this Tribunal in second stage litigation praying for the following relief:-
"In view of facts and grounds mentioned in Para 4 and 5 of the OA applicant prays for the followings relief's:-
8.1 By an appropriate writ, order or direction impugned order dated 17.11.2022 at Annx.A/1 be declared illegal and be quashed and set aside.
8.2. By an order or direction respondents may be directed to consider the case of applicant for compassionate appointment as per scheme and provide her appointment on any suitable post with all consequential benefits.
8.3 Any other relief which is found just and proper be passed in favour of the applicant in the interest of Justice"
2. This matter is taken up by the Single Bench in view of the revised list dated 04.04.2000 and that dated 10.09.2021 issued under Sub Section (6) of Section 5 of the Administrative Tribunals Act, 1985, as no complicated questions of law is involved in this matter, and, with the consent of the parties.
3. Heard both learned counsel. Examined pleadings and documents on record. It is noted that no rejoinder has been filed to the reply of the respondents.
4. Learned counsel for the applicant would submit that the applicant's spouse, late Yadvender Singh Tomer was appointed to 3 the post of Khallasi to the Office of Senior Section Engineer (TMC), Jodhpur on 15.02.2006 (as per Annexure-A/3 to the OA). Unfortunately, he had expired on account of a road accident on 26.09.2017 as per death certificate at Annexure-A/2 to the OA. That, on 23.10.2017, the applicant prayed for compassionate appointment upon the untimely demise of her spouse/ex-employee of the respondent authorities (Annexure-A/4 to the OA). A detailed representation followed on 12.12.2017 as per Annexure-A/5 to the OA, and, not having received any reply thereon, preferred OA No.107 of 2018 before this Tribunal upon which certain terminal benefits were released to the applicant vide Annexure-A/8 to the OA. This Tribunal disposed of OA No.107/2018 (as per Annexure- A/10 to the OA) directing the respondent authorities to consider her representation for compassionate appointment within a period of two months of the applicant's preferring a fresh representation to such purpose.
In compliance, the respondent authorities issued a communication dated 17.11.2022 (Annexure-A/1 to the OA), which is challenged herein, in which the applicant's representation was rejected on the ground that, as per the judgment of the Hon'ble Apex Court dated 20.09.2017, provisional engagement of Course Completed Trained Act Apprentices as Fresh Face Substitutes 4 having been declared illegal, all such appointments of Course Completed Trained Act Apprentices as Fresh Face Substitutes stand as terminated. Hence, the applicant's prayer for compassionate appointment is not acceptable. Being aggrieved with such rejection, the applicant has approached this Tribunal for relief.
5. The applicant would, inter alia, advance the following grounds in support of her claim.
(i) That, the services of her spouse were never terminated as he expired, while in service.
(ii) That, although the respondents had informed the office of the PMO that her prayer for compassionate appointment would be continued after finalization of the OA pending before this Tribunal, they had rejected her prayer in contradiction to such assertions.
(iii) That, rejection of the applicant's prayer for compassionate appointment violates the right of the applicant as per Articles 14 and 16 of the Constitution of India.
(iv) That, given the Liberal Policy of the Railways, such compassionate appointment was to be provided immediately to the applicant to provide relief to the bereaved family, particularly as the applicant is in 5 penury with two minor sons aged 4 years and 8 years respectively at the time of demise of ex-employee.
(v) Learned counsel for the applicant would submit that, despite directions of this Tribunal, the exact date of notification issued by the respondent Administration terminating the services of the applicant, has never been brought on record.
6. Per contra, the respondents would rebut the claims made by the applicant, and the grounds advanced thereupon, with their following arguments:-
(i) It is a fact that the ex-employee was provisionally engaged as a Course Completed Trained Act Apprentice Fresh Face Substitute on 15.02.2006 subject to the condition that if the RRB appoints any regular employee to such post, the provisional engagement of Course Completed Trained Act Apprentice as Fresh Face Substitute would stand as terminated.
(ii) When the respondent Railway had advertised for engagement of Course Completed Trained Act Apprentice in Group D vide notification dated 10.09.2004, the said notification and the policy decision dated 30.08.2004 were challenged before this Tribunal in OA No.264/2004. Such OA 6 was allowed by this Tribunal in its order dated 24.02.2005 as annexed at Annexure-R/1 to the reply. This Tribunal, upon reliance on Union of India versus Hargopal (AIR 1987 SC 1227) found that the action of the respondents was unjustified and declared the impugned policy as arbitrary, discriminatory and as offensive to the equality clause as enshrined in Articles 14 and 16 of the Constitution. This Tribunal, however, did not preclude the respondents to taking recourse to engage the Fresh Face substitutes against group D posts in emergent situations, after having considered the relevant instructions/rules in force and the observations of this Tribunal as contained in its orders.
The respondent Railways, thereafter, preferred three Writ Petitions before the Hon'ble High Court of Judicature for Rajasthan at Jodhpur namely (i) Civil Writ petition No.4272/2005 (UOI & Ors. Central Administrative Tribunal, Jodhpur & Ors.), (ii) Civil Writ petition No.4273/2005 (UOI & Ors. Central Administrative Tribunal, Jodhpur & Ors.), and (iii) Civil Writ petition No.4274/2005 (UOI & Ors. Central Administrative Tribunal, Jodhpur & Ors.) The Hon'ble High Court of Rajasthan, in its judgment delivered on 05.12.2007, clarified 7 that the Railways are to complete their process of regular selection within a period of 4 months, and, that the Fresh Face substitutes already so appointed, would be allowed to continue for that limited period of four months till the selection of the regular recruits are completed (Annexure-R/2 to the OA).
This order of the Hon'ble High Court of Rajasthan was challenged before the Hon'ble Apex Court in Civil Appeal No(s). 5027-5029 of 2012 (Abdul Hamid & Ors. Vs. Union of India & Ors). The Hon'ble Apex Court, on 20.09.2017 (Annexure-R/3 to the OA), dismissed the said SLPs upon holding that the provisionally engagement of Course Completed Trained Act Apprentices as Fresh Face Substitutes was illegal, and, as the applicant's spouse was one of such provisionally engaged Course Completed Trained Act Apprentice as Fresh Face Substitute, his appointment stood as terminated from the date of the decision of the Hon'ble Apex Court.
(iii) Further, by virtue of the liberty granted by the Hon'ble Apex Court to give relaxation to the appellant act apprentices and to enable them to be considered at par with the applicants in the selection process, the respondent 8 authorities issued a further communication dated 01.01.2018 as per Annexure-R/4 to the OA. And, that, on 02.11.2018 as per Annexure-R/7 to the OA, the applicant was informed that her husband's services stood as terminated as per the Hon'ble Apex Court's judgment dated 20.09.2017, and, that her plea for compassionate appointment would be finalized after disposal of the OA pending at the level of this Tribunal.
7. Having carefully considered the pleadings, the rival arguments, and having perused documents on record, this Tribunal would decipher as follows:-
(i) The engagement/appointment order whereby the ex-
employee/spouse of the applicant was provisionally appointed as Khallasi vide orders dated 14.02.2006, was subject to the following conditions:-
(a) That, once the Railway Board appoints regular recruits to the posts to which the applicant had been engaged provisionally, he would stand as terminated forthwith,
(b) That, such appointment orders would preclude the applicant from raising any claim for regularization,
(c) That, the appointment is subject to the outcome of Civil Writ No.4272 of 2005 awaiting consideration of the Hon'ble High Court of Judicature for Rajasthan at Jodhpur. 9
Accordingly, while entering his position as Fresh Face substitute with Railways, the applicant was aware, and, was put to notice that his appointment was likely to be terminated upon posting of regular recruits, and, that such appointment was subject to the outcome of CWP No.4272 of 2005 before the Hon'ble High Court of Judicature for Rajasthan at Jodhpur.
(ii) In OA 264/2004, this Tribunal was adjudicating the challenge to the order dated 30.08.2004 leading to the issue of notification dated 10.09.2004, in which the recruitment of Group D posts was restricted to the candidates amongst the Course Completed Trained Act Apprentice, who have been given Apprentice training in respective divisions/workshops of the Railways. Such challenge was raised by the candidates, who possessed NCVT certificates without being trained from the divisions/workshops of the Railways. This Tribunal considered the policy/orders dated 30.08.2004 as arbitrary, discriminatory and offensive to equalization clause as enshrined in the Articles 14 and 16 of the Constitution of India, and the proceedings of engagements consequent to such orders notification all stood as quashed. It is noted that 10 this Tribunal had issued its directions vide its orders dated 24.02.2005.
(iii) The respondent Railways had challenged the orders of this Tribunal in 3 Civil Writ Petitions Nos. 4272, 4273 and 4274 of 2005 respectively, and the said Hon'ble High Court, vide its orders dated 05.12.2007, allowed the Railways to complete the regular selection process within a further period of four months, and permitted the substitutes who have been engaged as per the policy/orders dated 30.08.2004 and notification dated 10.09.2004 to continue only for those intervening four months and no further.
(iv) Being aggrieved by quashing of the Railway's policy/order dated 30.08.2004 and the subsequent notification thereupon, such appellants approached the Hon'ble Apex Court in SLP No.5027-5029 of 2012, which was disposed of by the Hon'ble Apex Court on 20.09.2017, stating as under:-
"13 The appellants were well aware that their appointments were made when the original applications were pending before the Tribunal or when the writ petitions were pending before the High Court we were subject to the result of the litigation. They did not choose to file any application for intervention before the High Court. After the Railways lost in the High Court and did not carry the matter further, they approached this Court. They were granted stay and have been continuing on the basis of the stay order. They knew that their fate depended upon the result of the litigation. Once their appeal is dismissed they cannot be permitted 11 to be continued in employment only because they have been permitted to continue due to the interim orders.
14. At this stage, we may note that the learned Solicitor General had informed us that fresh regular recruitment for Group-D posts and other posts in Bikaner Division of the Railways is under process. On 24th August, 2017, 14 original applicants were granted age relaxation for a period of 13 years and they were permitted to appear in the selection process wherein their cases would be considered on merit. Mr. R. Venkatramni, learned senior counsel had sought time to take instructions from his clients in this regard. He now submits that his clients, having served for more than 10 years, are not in a position to appear in the test. We are concerned with a large number of appellants and in case the process for selection is still on, we direct the Railways to give relaxation of age to the appellants by deducting the period of service for which they have worked and they may also be considered at par with the original applicants by allowing them to take part in the selection process. In case the appellants or any of them do not take part in the selection process, they will not be given relaxation of age in any further selection process. As far as the intervenors are concerned, no relief can be granted to them.
15. In view of the above, we do not find any merit in these appeals which are dismissed accordingly."
Hence, the Fresh Face substitutes engaged by notification dated 10.09.2004 had continued to function till 20.09.2017 in the backdrop of the interim protection.
(v) Further, vide communication dated 01.01.2018 in compliance with liberty granted by the Hon'ble Apex Court, NWR was directed to give relaxation of age to the Act Apprentices by deducting the period of service for which they have already worked, and that they could be considered qua original applicants by allowing them to take part in the selection process. However, if any of the applicants did not 12 take part in the selection process, they would not be given relaxation in any further selection.
8. Learned counsel for the applicant would argue that while the applicant was admittedly allowed to continue by virtue of the stay granted by the Hon'ble Apex Court, his unfortunate demise on 26.09.2017 prevented him from taking advantage of the opportunities granted by the Railways on 01.01.2018 for age relaxation and consequent participation in the selection process.
It is noted, however, that para 14 of the Hon'ble Apex Court's order confines such relaxation and liberty to the appellants before the Hon'ble Apex Court. Admittedly, the applicant's spouse/ex-employee had not been one of the appellants before the Hon'ble Apex Court.
9. It is also a matter of record that the Hon'ble Apex Court's orders were issued on 20.09.2017 and the ex-employee passed away on 26.09.2017. Accordingly, the applicant's date of termination of service would be 20.09.2017, when he was continuing as Fresh Face substitute in his backdrop as an Act Apprentice in NWR.
10. Learned counsel for the applicant would refer to a decision of this Tribunal in its Coordinate Bench at Jaipur in OA No.299/2001 13 (Nirmala Devi vs. Union of India & Ors), wherein this Tribunal had observed as under:-
"8. It is, thus, clear from the above discussion of the scheme, as prevailing in the Railways, regarding appointments on compassionate grounds, the scheme is very liberal and no means test is required to be applied while deciding the request for appointment on compassionate grounds. The length of service put in by the employee at the time of his death also is not a relevant consideration at all. In fact, rules specifically state that this should not be the considerations while deciding the case of appointment on compassionate grounds. In the department of Railways there is no mention at all that appointment on compassionate grounds has to be offered only in cases where indigent circumstances exists. If that be the provision of the scheme, which is conceived as a welfare measure for the employees, it is not open to any authority of the Zonal Railways to deny such request on grounds which are not in conformity with the provisions contained in various letters regulating appointments on compassionate grounds. It is thus clear that the impugned orders (Ann.A/1 & A/2), by which the request of the applicant has been rejected for appointment of her son on compassionate grounds, are not sustainable."
11. In Haryana State Electricity Board versus Krishna Devi, reported in 2002 (10) SCC 246, the Hon'ble Apex Court has held that in the absence of the extant rules or instructions at the time of death of the employees, there can be no claim for compassionate appointment. It was also held in the State of Haryana versus Ankur Gupta, reported in 2003 (7) SCC 704, that such appointments cannot be made de hors of any statutory policy.
In Uttranchal Jal Sansthan vs Laxmi Devi, reported in (2009) 7 SCC 205, the Hon'ble Apex Court held that those persons, not regularly appointed, but, who have otherwise put in three years' continuous service in "regular vacancy" in such employment, 14 were not Government servants and as such his dependants were not entitled to be considered for compassionate appointment.
In Laxmi Devi (supra), it was further reiterated that rules relating to the compassionate appointment have to be given strict interpretation and compassionate appointment cannot be claimed as a matter of right.
Finally, in State of Haryana versus Rani Devi, reported in AIR 1992 SC 2445, and in State Bank of India versus Sweta Sahu, 2010 15 SCC 146, the Hon'ble Apex Court, having regard to the exceptional nature of compassionate appointments, made it clear that a Scheme extending scope of such appointments to casual or ad hoc employees including apprentices would be unconstitutional and violative of Articles 14 and 16 of Constitution of India.
In the instant matter, the ex-employee was admittedly not a regular employee of the Railways, and his appointment was conditional in the sense that it would be liable to be terminated upon posting of regular recruits, and, subject to the outcome of CWP No.4272 of 2005. As the Hon'ble Apex Court had categorically decided that the provisional engagements of Course Act Apprentices as Fresh Face substitutes by virtue of orders dated 30.08.2004 and consequent notification dated 10.09.2004, are not 15 legal, any claim that the applicant had rendered regular service for 11 years in the respondent Railways on the basis of interim protection till his demise, is not sustained.
In Rani Devi (supra), the Hon'ble Apex Court had considered compassionate appointment to dependants of Act Apprentices to be illegal. Accordingly, in deference to the judgment of Hon'ble Apex Court and the Hon'ble High Court whose outcome was the deciding factor in case of the engagement of the ex- employee, the applicant's claim of compassionate appointment against the engagement of her spouse/ex-employee fails.
12. Learned counsel for the applicant would refer to the reference made by the Coordinate Bench of this Tribunal at Jodhpur to the Liberal Scheme of the Railways, primarily designed as a meant for welfare measure to aver that the Railways should extend its compassion to the applicant given her present state of penury and the need for upkeep of her minor children due to the untimely demise of her spouse. While untimely demise of breadwinner of a family does bring unmitigated suffering to the dependants, it is a fact that the applicant's spouse/ex-employee was perfectly aware and was put to notice that his appointment was subject to the outcome of the certain judicial proceedings, and 16 that such appointment was liable to be terminated at any point of time.
It is noted that this Tribunal, the Hon'ble High Court of Judicature for Rajasthan at Jodhpur as well as the Hon'ble Apex Court, had all quashed and declared such appointments to be illegal and iniquitous given that they rebel against the essence of the spirit of Articles 14 and 16 as enshrined in the Constitution of India.
13. Accordingly, this Tribunal, in respectful deference to the orders of the above noted judicial fora, would consider the applicant's claim for compassionate appointment as unsustainable. The claim, therefore, fails and accordingly the OA fails to succeed. The respondents, however, are directed to release any dues, if so pending, and to which the applicant is rightfully entitled, not later than one month of receipt of a copy of this orders. No costs.
(DR. NANDITA CHATTERJEE) MEMBER (A) rss