Central Administrative Tribunal - Mumbai
Shri Gayadin Sukhadev Yadav vs Union Of India Through on 23 January, 2014
1 O.A. No. 2041/2009CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI.
CAMP : NAGPUR.
ORIGINAL APPLICATION NO.: 2041 of 2009 Dated this Thursday the 23rd day of January, 2014.
CORAM : Hon'ble Smt. Chameli Majumdar, Member (J).
1. Shri Gayadin Sukhadev Yadav.
2. Shri Avinash Gayadin Yadav.
(Both R/o. Plot No. 4, Parwatinagar, Post : Bhagwan Nagar, Nagpur 440 027) .... Applicants.
(By Advocate Ms. Rashi Deshpande) VERSUS
1. Union of India through the General Manager, Central Railway, Mumbai C.S.T.
2. Divisional Railway Manager, Central Railway, Nagpur. ... Respondents.
(By Advocate Shri Alok Upasani) O R D ER Per : Smt. Chameli Majumdar, Member (J).
The applicant no. 1, while working as Group 'C' employee, as Passenger Driver in the grade of Rs. 5500-9000, was declared medically unfit for categories A-1, A-2, A-3, B-1, B-2 and B-3 but was declared fit for C-1 and was medically 2 O.A. No. 2041/2009 decategorized by the Chief Medical Superintendent on 24.08.1998. According to applicant no. 1, the alternate equivalent suitable post in lower medical category was not available, therefore, the applicant was offered a post eight grades below in Group 'D'. Hence, the applicant no. 1 declined to accept the same. The applicant, thereafter, wrote a letter to the Divisional Railway Manager dated 20.11.1998 requesting, inter alia, that if Divisional Authority is not in a position to offer the applicant with an alternative job of his previous status in the pay scale of Rs. 5500-9000, then he may be allowed to retire from service with assurance to appoint his ward on compassionate ground in terms of Railway Board's letters dated 22.09.1998 and 03.09.1998. In the letter dated 20.07.1999 the applicant submitted that he took voluntary retirement on 02.03.1999 after being declared unfit on 24.08.1998. In the said letter he requested that his son, i.e., the Applicant No. 2, may be given appointment on attaining the age of majority and oblige. The date of birth of Applicant No. 2 being 09.12.1986, he attained majority on 09.12.2004 and he passed the 12th Standard High School Examination on 07.06.2005 and also passed trade test in the trade of electrician 3 O.A. No. 2041/2009 on 31.08.2008. while filing the Original Application in 2009, the applicant no. 2 was studying in B.A. Part-II. The applicant has challenged the communication dated 20.12.2005 which says that the applicant submitted his application for compassionate appointment after a period of five years four months of being medically decategorized. As per extant rules for appointment on compassionate ground, the wards of medically decategorized employees could be considered within five years from the date of medical decategorization. It was further mentioned in the said letter that in the two cases cited by the applicant, the applications for compassionate appointment were made within a year of their medical decategorization.
2. The applicant made his first application, after being medically decategorized, on 20.11.1998 requesting to register the name of the applicant no.2, i.e., his son. The papers were processed in the Office of D.R.M., Nagpur, on 20.07.1999. Therefore, the applicant no. 1 contends that he requested for compassionate appointment of his son within one year.
3. The applicants have filed an M.P. 2053/2009 for condonation of delay. The letter which has 4 O.A. No. 2041/2009 been impugned in this O.A. is dated 20.12.2005 and the O.A. has been filed on 16.02.2009. The grounds taken by the applicants are, inter alia, that the applicants, after receiving the initial rejection, vide letter dated 21.06.2005, the applicants obtained, under the Right to Information Act, a noting dated 01.06.2005 and on learning that the reason given was not in tune with the Railway Board guidelines, the applicant no. 1 preferred an appeal, which was rejected on 20.12.2005. The applicant, thereafter, represented to the General manager on 09.01.2006 and again on 24.12.2007.
4. The respondents have filed their reply. At the outset, the respondents submit that there is inordinate delay in filing the present O.A. The further contentions of the respondents are, inter alia, that the applicant opted for voluntary retirement, although alternative job was offered to him. There is no provision to register the name of minor son or daughter for compassionate appointment in the case of medically decategorized staff. The Railway Board's letter dated 16.11.1984 permits the wife of the ex-employee, who is medically decategorized/unfit to be considered for appointment in case the son or the daughter is minor. There is no provision in the case of 5 O.A. No. 2041/2009 medically decategorized/unfit ex-employees to wait till the son/daughter attains the majority and the request in such cases should positively be made within five years from the date of medical decategorization. However, the Railway Board changed its policy by its letter dated 18.01.2000, according to which, request for appointment on compassionate ground to an eligible ward in case of medical decategorization will not be admissible if the employee chooses to retire voluntarily. The claim of the applicant was rejected by the Headquarter in the light of the Railway Board letter dated 18.01.2000. The respondents annexed the letter dated 18.01.2000. Paragraph 4 of the said letter is set out herein below :
4. In the case of medical decategorization, i.e., those cases in which an employee becomes medically unfit for the post held at present but is fit to perform the duties of an alternative suitable post in lower medical category, the request for appointment on compassionate ground to an eligible ward will not be admissible, even if the employee chooses to retire voluntarily, on his being declared medically decategorized. Such an employee may then either be continued in a supernumerary post or allowed to retire voluntarily if he so desires but without extending the benefit of appointment on compassionate ground to a ward.
5. I have heard Ms. Rashi Deshpande, Learned Counsel for the applicant and Shri Alok Upasani, Learned Counsel for the respondents. The pleadings 6 O.A. No. 2041/2009 along with documents annexed have also been perused.
6. Admittedly, the applicants have filed this O.A. after almost 3= years from the date of impugned order, being Annexure A-1. It is well settled that repeated representations after arising of the cause of action cannot enlarge the prescribed time of limitation. The applicants have admitted in the M.A. for condonation of delay that there is a delay of two years and two months which deserves to be condoned in the interest of justice. From the documents annexed by the applicants as well as respondents, it is explicitly clear that the applicant no. 1 opted for voluntary retirement from railway service w.e.f. 02.03.1999. The ground taken by the applicants that the applicant no. 1 was offered a post eight grades below ought to have been challenged at the relevant point of time. However, the applicant accepted his settlement dues and voluntarily retired from service. The applicant, however, requested the authorities to appoint his son, who was only 12 years old at the relevant time, on compassionate ground, vide his letter dated 20.11.1998 while requesting the authorities to allow him to retire voluntarily. In his application dated 20.07.1999, the applicant no. 1 mentioned that his son may be given appointment on attaining the age of 7 O.A. No. 2041/2009 majority. From Annexure A-7 annexed by the applicant to the O.A., being the Note Sheet dated 01.06.2005, it appears that the Applicant No. 1 received settlement dues and he had been receiving pension. The respondents, relying on Railway Board's letter dated 18.01.2000, declined the request of applicant no. 1 to appoint his son on compassionate ground. It further appears that although the applicant was offered alternate job by the administration, he opted for voluntary retirement.
7. The applicant has annexed Railway Board's letter (Annexure A-12). The said Railway Board letter describes that appointment on compassionate ground are those appointments which can be made to the dependents of Railway servants who lose their lives in the course of duty or die in harness or become crippled while in service or medically incapacitated or decategorized for the post holding or due to sickness like heart trouble, cancer or such diseases where no alternative appointment on reasonable emolument could be offered.
8. I have gone through several Railway Board's letters regarding compassionate appointment in the case of railway employees who have been medically decategorized. The Railway Board letter dated 8 O.A. No. 2041/2009 28.07.2000 says that a decision was taken that the General Manager would be empowered to consider the request of the compassionate appointment in respect of cases up to 20 years old. However, the General Manager should satisfy himself on the basis of a balanced and objective assessment of the financial condition of the family that the grounds for compassionate appointment in each such case is justified, having regard to the number of dependents, assets and liabilities left by the Railway employee, income of any member of the family, as also his liability, including the aspect of whether the earning member is residing with the family of the deceased employee and whether he provides any support to the other members of the family. Therefore, as submitted by the learned counsel for the applicant that the General Manager has power to condone the delay of even 20 years is not applicable in each and every case of delay.
9. From the letter dated 09.12.2005 written by the Divisional Railway Manager (P), Nagpur, addressed to the Additional General Manager, Public Grievances Cell, it is clear that as per HQ's letter dated 06.04.1999, the request for compassionate appointment against medical decategorization has to be made within five years from the date of medical 9 O.A. No. 2041/2009 decategorization. In the instant case, there was no application from the wife of the applicant no. 1 for compassionate appointment and the son, i.e., the Applicant No. 2, applied after five years. It is further mentioned in the said letter that in terms of Railway Board's letter dated 22.09.1995, in the case of medically decategorized employee, compassionate appointment of an eligible ward can be considered where the employee concerned does not wait for the administration to identify an alternative job for him but chooses to retire and makes a request for such appointment.
10. In the instant case, admittedly, the applicant no. 1 was offered alternate job, which he declined to accept and opted for voluntary retirement from railway service w.e.f. 02.03.1999. His proper application for compassionate appointment of his son is dated 09.07.2004. The respondents ruled out the ground of discrimination mentioning, inter alia, that in the two cases of Surendra Kumar Rajmani and Rajesh Ramesh Shankar, as referred by the applicant, the application for compassionate appointment due to medical decategorization were made within one years from the date of occurrence.
11. It is well settled that appointment on compassionate ground is not an alternative mode of 10 O.A. No. 2041/2009 appointment. The purpose is to enable the family to get over sudden financial crises. Compassionate appointment cannot be claimed as a matter of right but has to be made in accordance with rules, regulations and administrative instructions, taking into consideration financial condition of the deceased. Such claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution since public service appointments should be strictly made on the basis of open invitation of application and merit. The Hon'ble Supreme Court, in a recent decision (Union of India Vs. Shashank Goswami & Another reported in 2013 (1) SCC (L&S) 51) held as follows in paragraph 9 :
9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate grounds is based on the premise that the applicant was dependant on the deceased employee.
Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crises occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate grounds cannot be claimed as a matter of right.
12. In the instant case, the applicant no. 1, admittedly, was offered an alternate job. He declined to accept on the ground that the same was not commensurating to the grade and status of his previous service. However, he applied for voluntary retirement and the same was accepted. The applicant 11 O.A. No. 2041/2009 represented before the authorities to register the name of applicant's son for future appointment on compassionate ground of his son when he would attain majority. The widow of the applicant no. 1 never applied for appointment on compassionate ground within one year from the date of medical decategorization of the applicant no. 1.
13. The Hon'ble Supreme Court in the case of Eastern Coalfields Ltd. Vs. Anil Badyakar [AIR 2009 SC 2534] has held that compassionate appointment is not a vested right which can be exercised at any time in future. In the case of State of Manipur Vs. Md. Rajaodin [2003 (7) SCC 571] the Hon'ble Supreme Court has held that compassionate appointment cannot be claimed or offered after a lapse of time when the crisis is over. There cannot be endless compassion in respect of public employment.
14. The Hon'ble Supreme Court on number of occasions have held that in the event the family could survive for a long spell of time without any financial assistance, the request for compassionate appointment may be declined by the authorities, since the object of compassionate appointment is to assist the distressed family to tide over the imminent financial crisis.
15. The Hon'ble Supreme Court in the case of State of J 12 O.A. No. 2041/2009 & K Vs. Sajad Ahmed Mir [AIR 2006 SC 2743] explained why delay may be a negative factor. The Hon'ble Supreme Court held that this is an exception to the general rule viz. an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand. Once it is seen that in spite of death of the breadwinner, the family survived and a substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14.
16. Apart from being time barred, this O.A. is liable to be dismissed on merit as well. The O.A., accordingly, stands dismissed. No order as to costs.
(Smt. Chameli Majumdar) Member (J) os*