Central Administrative Tribunal - Jaipur
Smt Daulati Devi vs M/O Railways on 17 November, 2021
t OA No. 242/2017 with MA _No.136/2019 CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ORIGINAL APPLICATION No. 242/2017 with MISC. APPLICATION No. 136/2019 Order reserved on: 11.11.2021 CORAM: | HON'BLE MR. DINESH SHARMA, MEMBER (A) HON'BLE MRS. HINA P. SHAH, MEMBER (J) Smt. Daulati Devi widow of Shri Manglaram Ji, by caste Raigar, aged about 60 years, r/o. Village Kesarpura, p.S, Mangaliyawas, District Ajmer (son of the petitioner Nand Kishore worked as Helper Khalasi in Senior section Engineer, RAC office, Ticket No. 92447/RAC. Ajmer Group 'D'. ... Applicant (By Adv: Shri Raj Kumar Goyal) VERSUS 4, Union of India through the Chief Electric Engineer (Head Quarter), North-West Railway, G.M. Office: Ajmer. 2. The Deputy Chief Electric Engineer, North-west Railway, Ajmer. 3. The Assistant Personnel Officer (Electric), North- West Railway, Ajmer. 4. The Chief Factory Manager, Loco, North-west Railway, Ajmer. 5. Smt. Bhagwati Devi D/o. Shri Ganpatlal, 1/0 Village Pichholiya, P.S. Peesangan, District Ajmer: .... Respondents (By Adv: Shri Anupam Agarwal for respondents N9- 1 to 4. Shri Ankur Shrivastava ondent No. 5) for resp ORDER Per: Hina P. Shah, Member (A)
The present Original Application has been filed by the Applicant under Section 19 of the Administrative Tribunal Act, 1985 for the following reliefs: -
"(i) By an appropriate order the present Original Application of the applicant may kindly be accepted and the respondents be directed to immediately give compassionate appointment to the son of the applicant, namely Suraj, after death of elder son of applicant, namely Nand Kishore, while in service and also give all due service benefits of Late Nand Kishore, to the applicant with interest.
(ii) Cost of the application may also be awarded to the applicant.
(iii) Any other order or direction which the Hon'ble Tribunal deems just & proper may also be passed in favour of the applicant."
2, The facts as stated by the Applicant is that late Shri Mangalram while serving with Respondents expired and in his place his son, Shri Nand Kishore was given compassionate appointment. While working in service, Nand Kishore also expired on 27.05.2016 due to his wife, Smt. Bhagwati i.e. Respondent no. 5 giving him poison for which a criminal case was registered against her. Thus in the said circumstances, Applicant made 4 representation for payment of service benefits of her deceased son, Shri Nand Kishore to her and to give compassionate appointment to her younger son, Shri Suraj instead of Respondent no. 5 as Applicant's family !§ 3 QA No. 242/2017 with MA _No.136/2019 facing great hardship and she is old aged woman and it is very difficult for her to maintain her family as all other children are studying as it was only Nand Kishore her deceased son who was maintaining her family. Therefore, Applicant has filed the present Original Application being aggrieved by the action of the Respondents in not granting compassionate appointment to her younger son, Suraj and for grant of all service benefits of late Shri Nand Kishore to her.
3.a) After issue of notice, the official Respondents filed their reply raising preliminary objection that the Original Application is not maintainable as the Applicant has no cause of action because as per rules the Applicant cannot be granted compassionate appointment especially when the Respondent no. 5 being wife of the deceased employee is ready to accept appointment. Also as per Para 74 (4) of the MRPR after the marriage the nomination made prior to marriage becomes invalid. Accordingly, the earlier nomination made by the deceased Nand Kishore in favour of the Applicant was cancelled vide order dated 21.12.2016. Thus Original Application deserves to be dismissed at the outset being misconceived.
b) On merits, Respondents state that Respondent "0 5 is the wife of deceased Nand Kishore. As far 2° 4 A No. 242/2017 with MA No.136/2019 submission of cause of death of Shri Nand Kishore or filing of FIR is concerned, since the subject matter of investigation is by other authorities, same cannot be replied by the present Respondents. Further Applicant or her son cannot be considered for compassionate appointment especially when the wife of the deceased is available and ready to take it. Accordingly any request vide representation dated 20.06.2016 is of no relevance. Also as per law compassionate appointment can only be granted to the dependent of the deceased employee with the condition to maintain them. It is further stated that after the death of the employee, his wife, son or daughter are eligible for compassionate appointment. As Applicant and her second son comes within the definition of near relative, they can be considered only if the earlier eligible dependents are not available. Therefore, the action of the Respondents cannot be said to be arbitrary, illegal or unconstitutional in any manner. Thus present Original Application deserves to be dismissed.
4. Respondent no. 5 also filed a separate reply stating that the Applicant has filed present Original Application just to harass Respondent no. 5 and to delay her legitimate right in getting compassionate appointment and other service benefits. She is widow of late shri Nand Kishore and is having a three year old baby boy. As Per 2 Nog. 242/2017 with MA_No.1 201 para 74(4) of MRPR, if employee fills nomination before his/her marriage, the same shall be invalid after the marriage. The nomination filled by Shri Nand Kishore was prior to marriage and as such same stood to be invalid after his marriage. Thus instead of the Applicant, Respondent no. 5 being his wife becomes entitled for all service benefits of Late Shri Nand Kishore. As per Master Circular no. 16, son/daughter/widow/widower of the employees are eligible to be appointed on compassionate appointment. Thus neither the Applicant nor her son Suraj is entitled for compassionate appointment and other service benefits of the deceased Late Shri Nand Kishore. Hence, Original Application filed by Applicant deserves to be dismissed.
5. The Applicant has filed Rejoinder denying the submissions of the Respondents. She further stated that as Shri Nand Kishore got compassionate appointment on the death of her husband and as thereafter the Applicant was dependent on Late Shri Nang Kishore, also as Respondent no. 5 has given poison to Late Shri Nand Kishore and FIR is lodged against Respondent no. 95, therefore all service benefits have to be given to the Applicant as she is unable to maintain herself also she has daughters and son who are studying and it is very difficult to maintain the family. She is very old and is not possible 6 OA No. 242/2017 with MA No.136/2019 to take care of the family, hence prayed that compassionate appointment be provided to her younger son, Suraj and the present Original Application be allowed.
6. Applicant filed a Misc. Application No.136/2019 seeking amendment in the relief clause stating that Respondent no. 5 succeeded to get appointment in light of order passed by Hon'ble Tribunal in Original Application No. 351/2017 without making Applicant as party Respondent though notices in present Original Application were served to Respondent no. 5 prior to Order dated 22.12.2017 and thus Prayer jn Present Original Application be amended to the extent that Respondent no. 5 be directed to pay 50% of Pay (salary) to the Applicant and her family members for maintenance in case compassionate appointment is Not granted to the son of the Applicant, Suraj. Thus the amended relief/prayer be allowed in favour of the Applicant.
7. Official Respondents have filed reply to the said MA stating that Respondent NO. 3S has not yet been appointed, hence any assumption on the basis is devoid of any substance and said ma deserves to be rejected, It was further stated that Applicant Cannot use the august forum of the Tribunal to Settle her score with Respondent no. 5. Respondents again submitted that Applicant being 7 QA No. 242/2017 with MA No.136/2019 mother of the deceased son, Shri Nand Kishore cannot ask for compassionate appointment on the basis unless his wife or children are not ready to take it. Respondent no. 5 also filed its reply stating that when pleadings were complete and matter was posted for final hearing, at that instance after completion of pleadings amendment in relief clause will cause prejudice to the rights of the Respondents. Also order in Original Application No.351/2017 was passed prior to present Original Application, thus doctrine of Res-judicata will apply. Also Applicant has not come to court with clean hands as all her sons are major and are earning well and that Applicant is also getting pension of her husband, late Shri Mangalram. As far as, major brothers of the deceased late Shri Nand Kishore are concerned, they do not come under the category of dependents. Also Applicant has an agricultural land in her name as well as her sons, Vishnu, Bharat and Suraj and are cultivating and earning income from the said land. The Applicant and her sons have immovable property/things of deceased son, Shri Nand Kishore in their possession and thus the MA deserves to be allowed.
8. Heard the parties and perused the material available on record.
9. The Applicant as weil as the Respondents have reiterated the facts as mentioned earlier.
10. The short question which is required to be considered is whether Applicant who has no locus in the present Original Application can claim compassionate appointment for her son against the rules as a matter of right.
11. The factual matrix of the case is that Late Mangalram, the husband of the Applicant expired and thereafter in his place, his son, Shri Nand Kishore was appointed on compassionate grounds. He too expired and he was survived by his wife, Smt. Bhagwati Devi i.e. Respondent no. 5, and her three year old son. It is the allegation of the Applicant that Respondent no. 5 who is the wife of deceased, late Shri Nand Kishore has given poison to him and as such an FIR was registered u/s 302, 384, 379, 323, 341, 504/34, 120-B of IPC at Police Station Mangaliyawas, District Ajmer against Respondent no. 5. As the Police have filed a negative report against Respondent no. 5, Applicant has filed a Protest Petition which is pending adjudication, It is the claim of the Applicant that in such circumstances, Applicant may be given service benefits of her late son Shri Nand Kishore and that compassionate appointment be provided to her younger son, Suraj. She is old and unable to maintain her 9 QA No. 242/2017 with MA No.136/2019 family and her children are studying and whole family is facing great hardship and thus benefits be given.
12. On the other hand, Respondents state that after death of her son Shri Nand Kishore, the nomination made prior to marriage becomes invalid as per Para 74 (4) of MRPR. Accordingly the earlier nomination of the Applicant was cancelled by order dated 21.12.2016. Thus it is clear that the Applicant is not entitled to ask for any service benefits as well as compassionate appointment for her son, Suraj due to death of late Shri Nand Kishore. As per law, the compassionate appointment can be granted only to the dependents of the deceased Employee with a condition to maintain them. Thus widow of the deceased employee is most eligible to ask for Compassionate appointment. On the other hand, Applicant comes under the definition of near relative and Can be considered for compassionate appointment Only if the eligible dependents are not available or are Not ready to accept the said appointment. Thus Applicant has no cause of action to seek the relief ang action of Respondents is just and proper.
13. Now coming to the rule Position we have gone through Master Circular No. 16 which deals with 10 OA No. 242/2017 with MA No.136/2019 to be appointed on compassionate grounds:
Son/daughter/widow/widower of the employees are eligible to be appointed on compassionate grounds in the circumstances in which such appointments are permissible. Where the widow cannot take up employment and the sons/daughters are minor, the case may be kept pending till the first son/daughter becomes major i.e. attains the age of majority i.e. attains the age of 18 years, subject to time limits as provided under para v of the Circular. The benefit of compassionate appointments may also be extended to a "near relative/adopted son/daughter". The eligibility of a near relative/adopted son/daughter to such appointments will be subject to the certain conditions.
14, Thus bare perusal of the Chapter 11] reveals that only son/daughter/widow/widower of the employees are the consideration zone for appointment on compassionate grounds. As far as Criminal case lodged against Respondent no. 5 is concerned, it the subject matter of investigating authorities and this Court has no jurisdiction tl OA No. 242/2017 with MA _No.136/2019 over it, hence this Court cannot pass any observations on the same.
15. From the material placed before us, we have noticed that Respondent no. 5 has earlier by way of Original Application No. 351/2017 approached the Hon''ble Tribunal, wherein this Hon'ble Tribunal vide its order dated 22.12.2017 had directed the Respondents to process the case of the Applicant i.e. Respondent no. 5 for grant of appointment on compassionate grounds in accordance with the provisions of policy guidelines of the Railways. It is also gathered from reply of official Respondents that Respondent no. 5 is yet not been appointed.
16. As far as MA for amendment is concerned, the said MA has been filed by the Applicant on 6.02.2019 after pleadings are completed way back on 20.07.2018 when Rejoinder was filed by the Applicant. Also as seen order passed by this Tribunal in Original Application No 351/2017 filed by Respondent no. 5 is Concerned, same was passed on 22.12.2017. Therefore, now belatedly Applicant is approaching the Tribunal seeking amendment 1?
OA No. 242/2017 with MA No.136/2019 Applicant is premature and highly misconceived as till the date of filing reply to the MA by official Respondents, compassionate appointment is not granted to Respondent no. 5. Thus assumption of the Applicant is vague and absurd. The Applicant cannot take court for a ride to settle her score with Respondent no. 5. As per rules, it is clear that compassionate appointment cannot be claimed as a matter of right. Also when no appointment is granted to Respondent no. 5, the prayer of the Applicant becomes infructous and thus M.A. for amendment stands rejected s it is all about ifs and buts which cannot be accepted, a
17. As per rules, widow has first right/claim for grant of compassionate appointment and in present case when Respondent no. 5 has already raised her claim for compassionate appointment, therefore as per Master Circular no.16, neither Applicant nor her SON are entitled for compassionate appointment. Pertaining to the claim of the Applicant, that she is entitled for the Salary of the deceased of late Shri Nand Kishore on the basis of nomination also cannot be accepted as in view of Para 74 (4) of MRPR, since it is clear that after marriage the nomination made prior to Marriage becomes invalid. AS such nomination made by deceased late Shri Nand 13 QA No. 242/2017 with MA No.136/2019 Thus in view of this legal position, Applicant cannot raise any issue towards dues of late Shri Nand Kishore. Also none of the grounds raised by the Applicant be it that the action of Respondents in not providing appointment to her son, Suraj or about non-payment of service benefits of late Shri Nand Kishore to the Applicant is arbitrary, illegal cannot be accepted as it is clear from the rule position as neither the Applicant nor her son Suraj have any claim for grant of compassionate appointment as wife of the deceased i.e. Respondent no. 5 has already applied for the grant of compassionate appointment. other grounds raised by the Applicant are also not convincing.
Moreover, appointment on compassionate grounds cannot be claimed as a matter of right.
18. As held by the Hon'ble Apex Court in recent judgement in the case of Indian Bank & Ors. V/s. Promila & Anr. reported in (2020) 1 SCC(L&S) 312 that though Court has sympathy with Respondents for predicament they faced on death of deceased but sympathy alone cannot give remedy to Respondents. Courts cannot substitute a scheme or add or Subtract from terms thereof in exercise of judicial review, 14 OA No. 242/2017 with MA No.136/2019 present Original Application suffers from merit the same ordingly dismissed with no order as to cost. fa) is acc (Hina P. Shah) ; (Dinesit Sharma) Member (3) Member (A) i