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Central Administrative Tribunal - Allahabad

Ratnesh Kumar vs North Eastern Railway on 14 February, 2023

                                                      O.A. No.248/2022


                                         (Reserve on 10.2.2023)

 Central Administrative Tribunal, Allahabad Bench, Allahabad

                          O.A. No. 248/2022
This the 14th day of February, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)

Ratnesh Kumar a/a 30 years son of Mahendra Kumar resident of
House No. 352 E, Singhasanpur, Post - Kudaghat, District-
Gorakhpur.
                                           ...........Applicant
By Advocate: Sri B.D. Pandey

                             Versus

     1. Union of India through Chairman, Railway Board, Rail Bhawan,
        New Delhi.
     2. General Manager (P) North Eastern Railway, Gorakhpur.

                                           Respondents

By Advocate:      Sri Kamleshwar Singh

                             ORDER

By Hon'ble Mr. Justice Om Prakash-VII, Member (J) This O.A. has been filed by the applicant with prayer for setting aside the impugned orders/ letters dated 11.9.2019, 6.1.2020 and 26.5.2021 and for direction to the respondents to provide appointment to the applicant on compassionate ground.

2. The brief facts of the case are that the father of the applicant namely Mahendra Kumar who was regular employee in the respondent's department suffering from several deceases and lost his both eyes and he was paralyzed later on. Medical Board vide report dated 15.2.2019, declared the applicant unfit to perform duty in any post of medical category and Board recommended that applicant should be invalidated out of railway service permanently on medical ground. After medical decategorisation, father of the applicant was not offered any alternative job. Applicant submitted application dated 30.5.2019 for compassionate appointment in place of his father. Unfortunately, father of the applicant died on 4.5.2021. The claim of the applicant was rejected vide impugned order dated 11.9.2019, following by another impugned order dated 6.1.2020, only on the ground that father of the applicant would retire in the month of March 2020, so no occasion arise to provide compassionate appointment. Again mother of the applicant submitted application on 15.2.2021 and vide letter dated 25.6.2021, Page 1 of 6 O.A. No.248/2022 it was informed that vide order dated 11.9.2019 and 6.1.2020, the claim of the applicant has already been rejected, so nothing remain to be done.

3. Counter affidavit has been filed by the learned counsel for the respondents, stating therein that the claim of the applicant was properly examined in the light of Railway Board's letter No. E(NG)II/90 RC-1/117 dated 12.12.1990 Para I(V), which is quoted below:-

"Where on being medically decategorized, a Railway employee is offered alternative employment on the same emoluments, and requested for compassionate appointment, provided that if he has less than three years of service at the time of de-categorization, personal approval of the General Manager is to be obtained before the compassionate appointment is made. "

Accordingly, the matter was examined and order dated 11.9.2019 of the competent authority was communicated to the applicant. Applicant again approached the department vide application dated 26.11.2019. The matter was again put up before the competent authority and order dated 6.1.2020 was communicated to the applicant. Again vide application dated 15.2.2021 approached the departed which was also considered and vide letter dated 25.6.2021, reply was given to the applicant.

4. Heard the learned counsel for the parties.

5. Learned counsel for the applicant argued that father of the applicant was medically decategorised and in view of Rule 4(iii)(b) Consolidated Rules, the applicant is entitled for compassionate appointment but without considering the provisions of rule, the claim of the applicant has been rejected. Learned counsel for the applicant also relied upon the following case laws:-

i) Bhawani Prasad Sonkar Vs. Union of India and others reported in (2011) 4 SCC 209

ii) Smt. Ram Rati and another Vs. UOI and others reported in 2010 (5) ADJ 241 (DB)

6. Learned counsel for respondents argued that case of the applicant was considered as per para I(V) of Railway Board's letter dated 12.12.1990, which clearly states that "Where on being medically decategorized, a Railway employee is offered alternative employment on the same emoluments, and requested for compassionate appointment, provided that if he has less than three years of service at the time of de-categorization, personal approval Page 2 of 6 O.A. No.248/2022 of the General Manager is to be obtained before the compassionate appointment is made." Applicant has not applied for alternative job. He has applied for compassionate appointment of his son. He was declared medically unfit 15.2.2019 and he was to retire in March 2020. Only few months were left in his service. Hence, as per aforesaid rule of Railway Board, compassionate appointment of his son was not possible.

7. I have considered the rival submission of the parties and have gone through the entire record.

8. From perusal of record, it is evident that father of the applicant appointed in the year 1990 and continued upto the year 2019, till he was declared medically unfit. As per the impugned order, father of the applicant was to retire in the month of March 2020. As per the medical report, he was declared unfit for any job. If such was the position, submission of the learned counsel for applicant across the bar relating to alternative job cannot be accepted. It is also mentioned herein that applicant's father himself had applied for compassionate appointment of his son instead of requesting for alternative job. Thus, on this ground also, applicant pleas is not acceptable.As far as observation recorded by the authority concern in the impugned order is concerned, certainly within few months applicant's father was to retire. Nothing is mentioned in the pleading of the applicant to show that virtually applicant was in financial distress.

9. In the case of Bhawani Prasad Sonkar Vs. UOI and others (supra), Hon'ble Apex Court has observed as under:-

"18. In V. Sivamurthy Vs. State of Andhra Pradesh & Ors.4, this Court while observing that although appointment in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution, yet appointments on compassionate grounds are well recognized exception to the general rule, carved out in the interest of justice to meet certain 2 (2008) 15 SCC 560 3 (2008) 8 SCC 475 4 (2008) 13 SCC 730 contingencies, highlighted the following two well-recognised contingencies as exceptions to the general rule :

"(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.

(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner."

19.Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service.

Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.

20. Tested on the touchstone of these broad guidelines governing appointment on compassionate ground, we are of the opinion that the appellant has made out a case for such appointment. It is manifest that in terms of circular dated 29th November, 2001 only those employees, who have been totally incapacitated from performing any service after 29th April, 1999 were entitled to seek compassionate employment for their wards. In the instant case, appellant's father retired on 30th August, 1999 i.e. after 29th April, 1999, but was not offered alternative employment in terms of the Circular dated 29th April, 1999.

21. The circular/letter dated 29th November, 2001, on which reliance was placed while rejecting appellant's claim has to be understood in its correct perspective. Evidently, it seeks to limit the benefit of compassionate employment to only those incapacitated employees who had been retired after 29th April, 1999, as in case of employees who were found fit for performing services in a lower category, Circular dated 29th April, 1999 would be applicable, and the Railways was bound to offer alternative employment to such employees. It flows therefrom that after 29th April 1999, those employees who did not accept the alternative employment, and opted for voluntary retirement could not be given the benefit of compassionate employment for their wards.

22. In the instant case, the respondents have not placed any material on record to establish that the appellant's father was offered any alternative employment in terms of Circular dated 29th April, 1999. On the contrary, it appears that the Standing Committee recommended his retirement.

Having denied appellant's father the benefit of Circular dated 29th April 1999, the respondents cannot claim that Circular dated 29th November, 2001 was applicable to appellant's father, disentitling him from seeking employment on compassionate ground for his son as he was not totally incapacitated and had sought voluntary retirement. It is clear from the retirement order dated 30th August, 1999 that the appellant's father was retired from service pursuant to the recommendation of the Standing Committee.

23. In light of the fact that Circular dated 29th November, 2001 was not applicable in the case of appellant's father, inasmuch as the benefit of the 29th April, 1999 Circular was not extended to him, and he was made to retire from service, we are of the opinion that the earlier circular dated 22nd September, 1995 is applicable in the instant case. Consequently, the appellant would be entitled to employment on compassionate ground as the said Circular contemplates compassionate employment for the wards of those employees who have been medically de-categorized, and have retired, without being offered an alternative suitable job. We are unable to accept the plea of the respondents that on being de-categorized, appellant's father had opted for voluntary retirement."

This case will not support the case of the applicant because in this case Hon'ble Apex Court has observed that father of the applicant was not offered any alternative employment, hence applicant would be entitled to employment on compassionate ground. But in the case in hand, applicant himself have applied for appointment of his son on compassionate ground instead of any alternative job and he has left only few months in his retirement.

10. In the case of Ram Rati and another Vs. UOI and others , Hon'ble High Court has observed as under:-

"We find substance in the contention that the entitlement to pension and the short period left in service could not be a ground to deny the appointment to the son of a permanently disabled employee. The Master Circular however is only a compilation of the guidelines for such compassionate appointment. It is neither exhaustive nor can be treated to confer an indefeasible statutory right, if the conditions in the circular are fulfilled. The Railway Authorities have still to look into the entire facts and circumstances of each case. Their decisions should not loose objectivity. A compassionate appointment is given to a dependent of the family to tide over immediate financial crisis faced on the death or invalidation of the bread earner. The Government or the public authority, as it was held in Umesh Kumar Nagpal (Supra)'s case, has to examine the financial condition of the family of the deceased or the invalidated employee, and only if it is satisfied that the family will not be able meet the financial crisis, the job has to be offered to the eligible 13 member of the family. The law has been reiterated in all subsequent decisions of the Supreme Court upto State of Page 5 of 6 O.A. No.248/2022 Chattisgarh & Ors Vs. Dhirjo Kumar Segar [2009 (13) SCC 600]"

The grounds for rejecting the compassionate appointment were upheld by the Tribunal. The petitioner No.1 had only a few years more to serve. She is getting pension apart from ex-gratia, on account of death of her husband. Her children were married and were settled in the 16 years she had served. The family was not left in any distress. Her son was in a private employment and was maintaining his family with the help of pension and exgratia amount received by his mother. In such a situation, the decision to reject her request was arbitrary or illegal. The writ petition is dismissed."

In this case Hon'ble Allahabad High Court has dismissed the writ petition on the ground that petitioner No. 1 had only a few years more to serve and on other grounds. In the present case also father of the applicant left only few months to retire. Hence on the basis of this judgment, applicant is not entitled for compassionate appointment.

11. In the instant case, case of the applicant for compassionate appointment was considered in the light of Railway Board's letter No. E(NG)II/90 RC-1/117 dated 12.12.1990 Para I(V) of which clearly states that Where on being medically decategorized, a Railway employee is offered alternative employment on the same emoluments, and requested for compassionate appointment, provided that if he has less than three years of service at the time of de-categorization, personal approval of the General Manager is to be obtained before the compassionate appointment is made. In the present case, applicant has left only few months of service, hence his case has rightly been rejected by the respondents and applicant is not liable to be granted any benefit.

12. Accordingly, O.A. is dismissed.

13. There shall be no order as to costs.

(Justice Om Prakash VII) Member (J) HLS/-