Central Administrative Tribunal - Mumbai
Bhimsha Gangappa vs Union Of India Through on 4 October, 2013
1 O.A. No. 286/2010. CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 286 of 2010. Dated this Friday, the 4th day of October, 2013. CORAM : Hon'ble Smt. Chameli Majumdar, Member (J). Hon'ble Smt. Leena Mehendale, Member (A). 1. Bhimsha Gangappa, R/at : Hanuman Nagar, Tanda Post-Wadi, Taluka-Chittapur, Dist. Gulbarga, Karnataka. 2. Raju Bhimsha Gangappa, R/at : hanuman Nagar, Tanda, Post-Wadi, Taluka-Chittapur, Dist. Gulbarga, Karnataka. ... Applicants. (By Advocate Shri R. G. Walia) VERSUS 1. Union of India through The Secretary, Railway Board, Rail Bhavan, New Delhi 110 001. 2. General Manager, Central Railway, Head Quarters Office, CST Mumbai 400 001. ... Respondents. (By Advocate Shri V. D. Vadhavkar) O R D E R
Per : Smt. Chameli Majumdar, Member (J).
The applicant filed this Original Application challenging the action of the respondents in not 2 O.A. No. 286/2010. giving him appointment on compassionate ground.
2. Briefly stated, the facts of the case, as stated by the applicant are that the applicant was working as Mail/Passenger Driver. The applicant was declared medically unfit for the post of Passenger Driver w.e.f. 01.11.1999 by the Medical Board. Thereafter, the applicant was declared medically decategorized on 06.01.2000. The applicant made his first representation dated 17.02.2000 for seeking voluntary retirement from service. He made another representation on 23.10.2000 seeking voluntary retirement and also requesting the respondents to consider his second son, i.e., Applicant No. 2, for appointment on compassionate ground. Since no reply was received from the respondents, the Applicant no. 1 made another representation dated 28.11.2000 praying for voluntary retirement. The applicant retired voluntarily w.e.f. 14.03.2002.
3. The respondents in their reply have stated that the applicant put in 36 years of service and was 55 years and 9 months old on the date of medical decategorization on 06.01.2000. He submitted his voluntary retirement on 28.11.2000 and the same was accepted on 14.03.2002. The applicant applied for appointment on compassionate ground for his second son vide application dated 23.05.2002, being the 3 O.A. No. 286/2010. Applicant No. 2. His case was initially regretted by the respondent's letter dated 09.09.2003 and the same was communicated to the applicant vide letter dated 24.09.2003 and again vide letter dated 30.03.2005, as his case was not covered under rules. Para 2 of the Railway Board's letterdated 06.03.2002 is set out herein below :
"2. The matter has been further reviewed pursuant to a demand raised by the staff side in the DC/JCM and it has now been decided that Compassionate ground appointment may also be considered in favour of wife/eligible wards of such of the employees as were medically decategorized between 29.4.1999 and 18.1.2000 (both days inclusive) and declared unfit to continue in the posts they were holding but fit to hold posts with lower medical classification, subject to the conditions that :
(i) the employees concerned have retired voluntarily between 29.4.1999 and 18.1.2000 (both days inclusive) on medical decategorization during this period; and
(ii) such cases are personally considered and decided by the General Manager on individual merit of each case."
4. It appears from the pleadings and records that these instructions were further modified by the Railway Board vide letter dated 26.05.2004 to the extent that if the date of medical decategorization is between 29.04.1999 and 18.01.2000 and the employees sought voluntary retirement within this period but retired subsequently, then in such cases compassionate appointment to ward/wife could be considered by the General Manager. In the instant 4 O.A. No. 286/2010. case, though the date of medical decategorization was on 06.01.2000, i.e., before the cut off date being 18.01.2000, the applicant requested for voluntary retirement only on 28.11.2000. The applicant annexed letters dated 17.02.2000, 28.11.2000 and 23.11.2000 seeking voluntary retirement on invalid pension. Therefore, admittedly, the application for voluntary retirement was not submitted before the cut off date, i.e., 18.01.2000, in terms of Railway Board letter dated 26.05.2004. The applicant's case was found not to be covered under the rules framed by the Railways for appointment on compassionate ground in case of medical invalidation/decategorization.
5. Thereafter, the matter was referred to Railway Board vide letter dated 13.12.2005 and the Railway Board vide its letter dated 30.06.2006 advised to deal with the case in accordance with Railway Board letter dated 14.06.2006. According to the said Railway Board letter dated 14.06.2006, the Railway Board laid down the requirement that the employee concerned should have atleast 5 years or more service remaining at the time of medical decategorization. The respondents have pleaded that on receipt of a reference the case of the applicant was again re-examined and a special reference was 5 O.A. No. 286/2010. made to the Railway Board to permit this case as a special case by observing that rejecting a deserving case on a technicality of date is not correct. The Railway Board again rejected the case of the applicant for compassionate appointment of his second son, his first son being already in the Railway service. The respondents further stated that the applicant was paid Rs. 5,23,934/-as settlement dues and the applicant was drawing pension of Rs. 5,095/-plus D.A. Relief per month as per Fifth Central Pay Commission, which was further revised to Rs. 11,516/-in the Sixth Central Pay Commission plus D.A. Relief totalling Rs. 16,698/-per month. His elder son was working in Railways as Pointsman. His two daughters were married and settled. The General Manager considered the case for forwarding the matter to the Railway Board as a special case in Group 'D' post. Accordingly, the case was forwarded vide letter dated 14.05.2007 to Railway Board. The Learned Counsel for the respondents submit that the applicant did not disclose that Railway Board by letter dated 19.02.2008 communicated that the case of the applicant could not be found feasible for acceptance.
6. We have heard Shri R. G. Walia, Learned Counsel for the applicant and Shri V. D. Vadhavkar, Learned Counsel for the respondents. The pleadings 6 O.A. No. 286/2010. along with the documents annexed have also been perused.
7. The learned counsel for the applicant relied on the Master Circular No. 16, which was in force when the applicant was medically decategorized when he had more than three years service for retirement. He further submits that Railway Board letter dated 14.06.2006 was not applicable in his case. He also alleged that the condition given in the Railway Board letter dated 26.05.2004 was an absurd condition, i.e., an employee will seek voluntary retirement between the period 29.04.1999 to 18.01.2000 inasmuch as it would be impracticable that if a person was declared medically decategorized on 18.01.2001 he had to apply on 18.01.2000 otherwise he would not be entitled for consideration.
8. We have perused the Railway Board's letter dated 14.06.2006 which was directed to be relied by the Railway Board to reconsider the case of the applicant. Para 3 of the said Railway Board letter says that "Board had earlier decided that in case where an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement. In such cases, request for appointment 7 O.A. No. 286/2010. on compassionate ground to an eligible ward may be considered if the said employee chooses to retire voluntarily (para 3 of Board's letter of even number dated 18.01.2000)." In para 4 of the said letter it has been mentioned that upon a deliberation by the staff side at length in the full Board Meeting, compassionate ground appointment could be given subject to certain provisions. One of such provisions was that such an appointment should only be given in case of employees who are declared partially decategorized at a time when they have at least 5 years or more service left. We do not find force in the argument of the learned counsel for the applicant that in applicant's case this five years remaining service should not have been considered. The authorities should have taken into consideration the Master Circular No. 16 which provides that the employee concerned had more than 3 years of service which the applicant had at the time of retirement. The Master Circular is only compilation of Railway Board letters regarding compassionate appointment. Railway Board letter dated 19.10.1982 provided such term of more than 3 years service which were subsequently time to time amended by various Railway Board letters, namely letter dated 08.03.2002, 26.05.2004 and 14.06.2006. Unfortunately, the 8 O.A. No. 286/2010. applicant's case for compassionate appointment was not covered under any of such Railway Board letters. The applicant, by way of his submission, has thrown challenge towards the Railway Board letters dated 26.05.2004 and 14.06.2006 in the present O.A. which was filed in the year 2010. The above mentioned Railway Board letters were neither cancelled nor revoked by any competent court of law. That apart, the applicant was finally informed vide letter dated 19.02.2008 that his case was considered by the Board but the same was not found feasible or acceptable. The applicant has filed this O.A. on 24.03.2010 without disclosing the said letter and only challenging the inaction of the respondents in not giving compassionate appointment to his second son.
9. It is well settled by various decisions of the Hon'ble Supreme Court and the High Courts that the whole object of the Scheme of Compassionate appointment is to render financial assistance to a family, which is in an indigent condition deserving immediate assistance due to death or medical incapacitation of the Government employee. Compassionate appointment cannot be equated as a mode of recruitment. The law relating to compassionate appointment was revisited by the Hon'ble Apex Court in Jaspal Kaur's case [State Bank of 9 O.A. No. 286/2010. India Vs. Jaspal Kaur {2007 (9) SCC 571}]. It has been held that public office is not heritable and, therefore, compassionate appointment cannot be claimed as a matter of right. Compassionate appointment is not a bonanza or another source of recruitment. The purpose of such appointment is to tide over the sudden family crises. The Hon'ble Apex Court has also held that where the competent authority on consideration of all the relevant factors assessing financial condition of the deceased employee's family found that the family was not in penury and without means of livelihood, the Court in exercise of power under Article 226 erred in again going into the question of the financial condition of the family and interfering with the findings of the competent authority. In Sajad Ahmed Mir's case [State of Jammu and Kashmir Vs. Sajad Ahmed Mir {2006 (5) SCC 766=AIR 2006 SC 2743}] the Hon'ble Apex Court explained why delay may be a negative factor. The Hon'ble Apex Court held that compassionate appointment is an exception to the general rule. The general rule should not be departed from except where compelling circumstances demand. Where the family survived for quite a considerable time and a substantial period was over, there is no necessity to say 'goodbye' to the normal rule of appointment and to show favour to one at the 10 O.A. No. 286/2010. cost of the interests of several other ignoring the mandate of Article 14. In Sajad Ahmed Mir's case, the father of the applicant died in March, 1987. The application for compassionate appointment was made by the applicant after four and a half years leter in September, 1991, which was rejected in March, 1996. The rejection order was challenged in 1999. The Hon'ble Supreme Court was of the view that the delay was a relevant and material fact which went to show that the family survived in spite of the death of the employee.
10. The Hon'ble Supreme Court in a very recent judgment in the case of [Union of India & Another Vs. Shashank Goswami & Another {2013 (1) SCC (L&S) 51}] held that in case the family of deceased had received terminal benefits of more than Rs. 3 lac, dependent of deceased would not be eligible for compassionate appointment. It has further been held that compassionate appointment cannot be claimed as a matter of right but has to be made in accordance with rules, regulations or administrative instructions taking into consideration financial condition of the deceased. Such claim cannot be upheld on touchstone of Articles 14 and 16 of the Constitution since public service appointments should be strictly made on the basis of open 11 O.A. No. 286/2010. invitation of applications and merit. In this case the Hon'ble Supreme Court discussed the earlier judgments and held that the Apex Court on earlier occasions in the case of Govind Prakash Verma Vs. L.I.C. [2005 (10) SCC 289] held that the compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. But subsequently, in the case of Mumtaz Yunus Mulani Vs. State of Maharashtra [2008 (11) SCC 384] the Hon'ble Apex Court held that the judgment in Govind Prakash Verma had been decided without considering earlier judgments which were binding on the Bench. The Hon'ble Apex Court further held that the appointment has to be made considering the terms of the Scheme.
The relevant paragraphs being 11, 12 and 13, are set out herein below :
11. This Court in Govind Prakash Verma v. Life Insurance Corporation of India & Ors., (2005) 10 SCC 289 while dealing with a similar issue i.e. whether payment of terminal/retiral benefits to the family can be taken into consideration, held as under:
6. In our view, it was wholly irrelevant for the departmental authorities .. to take into consideration the amount which was being paid as family pension to the widow of the deceased .. and other amounts paid on account of terminal benefits under the Rules. ..
Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules. 12 O.A. No. 286/2010.
12. This Court in Punjab National Bank V. Ashwini Kumar Taneja, (2004) 7 SCC 265, placing reliance upon the earlier judgment in GM (D&PB) V. Kunti Tiwary (2004) 7 SCC 271, held that compassionate appointment has to be made in accordance with the Rules, Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. Whereas the scheme provides that in case the family of the deceased gets the retrial/ terminal benefits exceeding a particular ceiling, the dependant of such deceased employee, would not be eligible for compassionate appointment.
13. In Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384, this Court examined the scope of employment on compassionate ground in a similar scheme making the dependant of an employee ineligible for the post in case the family receives terminal/ retiral benefits above the ceiling limit and held that the judgment in Govind Prakash had been decided without considering earlier judgments which were binding on the Bench. The Court further held that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the deceased employee would not be eligible for employment on compassionate grounds.
11. In the instant case, the applicant was medically decategorized in 2000. Thereafter, the applicant was receiving pension. The applicant also received retiral benefits to the tune of Rs.
5,23,934/-. The applicant's request for compassionate appointment to his second son was regretted by the respondents as back as in 2003 and again in 2005 as his case was not covered under rules.
13 O.A. No. 286/2010.12. In view of the above discussion of law and facts, we do not find any merit in the present O.A. and the same is, accordingly, dismissed. However, there will be no order as to costs.
(Smt. Chameli Majumdar) (Smt. Leena Mehendale) Member (J) Member (A).
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