Central Administrative Tribunal - Lucknow
Mitthu Lal vs Northern Railway on 27 August, 2024
CAT, Lucknow Bench OA No. 332/00321 of 2022 Mitthu Lal & Another Vs U.O.I. & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00321/2022
Dated this 27th day of August, 2024
Hon'ble Mr. Pankaj Kumar, Member-Administrative
1. Mitthu Lal, aged about 60 years, S/o Late Shri Matai Lal,
2. Dinesh Kumar Bharti, aged about 32 years, S/o Shri Mitthu Lal,
(Both are resident of Village- Asausa, Post- Pawni Kala, Distt-
Azamgarh.)
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India, through the General Manager, Northern Railway,
Baroda House, New Delhi.
2. The Divisional Railway Manager, Northern Railway, Hazratganj,
Lucknow.
3. The Sr. Divisional Personnel Officer, Northern Railway, Hazratganj,
Lucknow.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER (Oral)
By- Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case relating to compassionate appointment, the applicant has sought the following reliefs:-
(i) To quash the impugned order dated 15.06.2022 and 20.02.2020 after summoning original from the respondents, with all consequential benefits.
(ii) To consider the case of the applicant no. 2 on compassionate ground on a suitable post in the light of instructions contained in Printed Serial no.
13167 and 11109/95 in view of medical de-categorization of applicant no. 1 and his consequential retirement order dated 17.08.2016, with all consequential benefits.
(iii) Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
(iv) Cost of the present case.
Page 1 of 6 CAT, Lucknow Bench OA No. 332/00321 of 2022 Mitthu Lal & Another Vs U.O.I. & Ors.
2. The facts of the case are that the applicant no. 1 (date of birth 03.03.1962), while working on the post of Mate under the respondents, was declared medically unfit for the post and a supernumerary post created to accommodate him till his adjustment against suitable alternative post. The applicant no. 1 applied for voluntary retirement with the request to consider his son, applicant no. 2, for appointment on compassionate ground. The respondents accepted his voluntary retirement with effect from 18.08.2016, but did not take any action on appointment of his son, applicant no. 2, on compassionate ground. The applicant no. 1 approached this Tribunal in OA No. 181 of 2022 whereupon, vide order dated 22.04.2022, this Tribunal directed the respondents to decide his representation. Aggrieved at rejection of his representation by the respondents vide their impugned order dated 15.06.2022, the applicant no. 1 along with applicant no. 2 have preferred this OA.
3. The contention of the applicant is that as per Railway Board's instructions dated 22.09.1995 vide RBE No. 17 of 1995 (Annexure 10 to the OA), the respondents are bound to consider the request of voluntary retirement coupled with request for compassionate appointment in case where the employee has been declared medically unfit. In support, the applicant has cited RBE No. 78 of 2006 also (Annexure 5 to the OA).
4. The respondents state that the applicants' case is ineligible for appointment on compassionate ground as per the Railway Board's letter dated 03.03.2009 providing that in the case of medically decategorized employees, only such cases can be considered for appointment on compassionate ground where the employee is medically decategorized for original post and category but is fit for lower post and lower medical category.
Page 2 of 6 CAT, Lucknow Bench OA No. 332/00321 of 2022 Mitthu Lal & Another Vs U.O.I. & Ors.
5. Heard both the parties. During the hearing, learned counsel for the applicant underlined that the request for voluntary retirement of applicant no. 1 was conditional as he had also requested for compassionate appointment of his son, applicant no. 2, and therefore, the respondents should not have accepted the voluntary appointment of applicant no. 1 if they were unable to consider the compassionate appointment of his son, applicant no. 2.
6.1 RBE No. 107 of 1995 dated 22.09.1995 cited by the applicant is extracted below:
"In terms of the instructions contained in Para I(iv) of Board's letter No. E(NG)III/78/RC-1/1 dated 07.04.1983 and 03.09.1983, appointment on compassionate grounds is permissible where a railway employee becomes medically decategorized for the job he is holding and no alternative job can be offered to him and also where a railway employee is offered alternative employment on the same emoluments but it is not accepted by the employee and he chooses to retire from service.
2. The question whether appointment on compassionate grounds can be considered in the case of a medically decategorized employee who does not wait for Administration to identify an alternative job for him but chooses to retire and makes a request for such appointment, has been under consideration of the Board.
3. After careful consideration of the matter, Board have decided that in partial modification of Board's letter No. E(NG)III/78/RC-1/1 dated 03.09.1983 in the case of medically decategorized employee, compassionate appointment of an eligible ward may be considered also in cases 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."
(emphasis supplied) It is evident from the above that the eligible ward of medically decategorized employee may be considered for compassionate appointment if the employee chooses to retire. 6.2 A similar position is echoed in RBE No. 78 of 2006 dated 14.06.2006 in the following terms:
"Sub: Appointment on compassionate grounds of ward/spouse of medically de-categorised staff on the Railways.
Pursuant to the notification of the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 instructions were issued by Ministry of Railways (Railway Board) laying down that in case where an employee has been medically invalidated/decategorised where the administration cannot find alternative posts for such an employee, he may be kept on a supernumerary post in the grade in which he was working on regular basis, till such time suitable post Page 3 of 6 CAT, Lucknow Bench OA No. 332/00321 of 2022 Mitthu Lal & Another Vs U.O.I. & Ors.
can be identified or till his retirement, whichever is earlier. As these instructions provided for continuation of service of a medically invalidated/decategorised employee, there would be no occasion to the employee to be retired from service on medical grounds. Therefore, according to the instructions, in such cases the occasion to consider a request for appointment on compassionate ground of an eligible ward would not arise (Board's letter No.E(NG)I/96/RE-3/9(2) dated 29.04.1999 refers).
2. Even if the employee chooses to retire voluntarily on his being declared medically decategorised, if he so desires he may be permitted but without extending the benefit of appointment on compassionate ground to a ward (para 4 of Board's letter of even number dated 18.01.2000 refers).
3. Board had earlier decided that in cases 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 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).
4. Pursuant to the demand raised by staff side the issue has been deliberated upon at length in the full Board Meeting and it has been decided that compassionate ground appointment to the wife/wards/dependants of partially medically de-categorised staff who seeks voluntary retirement may be given subject to the following provisions:
(a) The appointment will be given only in the eligible Group 'D' categories. 'Eligible' would mean that in case Group 'D' recruitment is banned for any particular category, the same would also apply for the compassionate ground appointments.
(b) Such an appointment should only be given in case of employees who are declared partially decategorised a time when they have atleast 5 years or more service left.
(c) CMD of the Railways should keep a watch over the trend of de-
categorisation so that the present figure do not get inflated. CMD should also get 10% partially de-categorised cases re-examined by another Medical Board not belonging to Divisional Hospital which initially declared them unfit.
5. All those employees medically decategorised after issuance of Board's letter No. E(NG)II/95/RC-1/94 dated 18.1.2000 will also be covered under these instructions. However, such cases which have already been finalized in terms of Board's letters No. E(NG)II/95/RC-1/94 dated 18.1.2000, 10.11.2000 and E(NG)II/2000/RC-1/genl./17 dated 6.3.2002 & 26.5.2004 need not be re-opened.
6. While considering such requests for compassionate ground appointment the General Manager should satisfy himself on the basis of a balanced and objective assessment of the financial & other conditions of the family, that the grounds for compassionate ground appointment in each such case is justified.(Board's letter No.E(NG)II/98/RC-1/64 dated 28.7.2000 refers)."
(emphasis supplied) 6.3 On the other hand, the respondents have produced letter dated 20.07.2020 of the Railway Board which reads as follows:
"In reference to your office letter cited above, it is to inform that advise on another similar nature case was sought for, from Railway Board, who has decided that such cases are ineligible for appointment on Compassionate Grounds in view of guidelines/clarification of Board as contained in Board's letter No. E(NG)II/2009/RC-1/CR/2 dated 03.03.2009.
Hence, in view of the above, division is advised to act in accordance with clarification issued by Railway Board's letter No. Page 4 of 6 CAT, Lucknow Bench OA No. 332/00321 of 2022 Mitthu Lal & Another Vs U.O.I. & Ors.
E(NG)II/2009/RC-1/CR/2 dated 03.03.2009, and take necessary action in the matter, at their end itself..."
(emphasis supplied) It is noted that the above letter does not make any reference to RBE No. 107 of 1995 dated 22.09.1995 and RBE No. 78 of 2006 dated 14.06.2006. 6.4 A similar dispute came up before Hon'ble Supreme Court in Ashok Kumar Mewari vs Union of India & Ors [Civil Appeal No. arising out of SLP (C) No. 5921 of 2019]. The observations of Hon'ble Supreme Court of relevance to this case from the judgment dated 05.12.2023 are extracted below:
"The Appellant who was an employee of the Railways applied for voluntary retirement on the ground of medical ailments, subject to appointment of his son Mukesh Mewari on compassionate ground.
.....
It is not made clear whether the Board's letter dated 03.03.2009 and the Circular dated 12.11.2014 are in continuation of or in reference to the Circular dated 14.06.2006.
.....
Therefore, in our view, the applicability of the Circular dated 14.06.2006 is independent of the subsequent clarification of the Board's letter dated 12.11.2014 explaining medical de-categorization of the employees. It is not out of place to state that the application for grant of voluntary retirement was made on 18.06.2013, prior to the purported clarificatory Circular dated 12.11.2014. The Board's letter dated 03.03.2009 was never placed before the Tribunal or the High Court to support the contention presumably because the Circular dated 14.06.2006 is independent of other circulars.
.....
In the case at hand the appellant applied for voluntary retirement subject to the condition that his son Mukesh Mewari may be appointed in his place, in terms of the Circular dated 14.6.2006. Thus, the prayer of voluntary retirement and to grant compassionate appointment were composite. The respondents by segregating the same, only accepted the prayer for voluntary retirement, without accepting the prayer of compassionate appointment to the appellant's son. In view of the ratio of the judgment in Ram Kesh Yadav (supra) such action is not justified.
It is not the case of the Respondent's Board that it had informed the appellant that the request of conditional voluntary retirement (as made) was contrary to the Circular, and that the Board was not willing to consider the same. It is also not the case of the Respondent's Board that it had informed the Appellant that on account of the existing norms, compassionate appointment to his son cannot be granted, and that therefore he has to apply unconditionally for voluntary retirement.
In our view, when a request for voluntary retirement has been made subject to the condition stipulated in the letter to grant the compassionate appointment to his son, it ought to be accepted by the Board compositely, i.e., accepting both the requests, or rejected in toto.
As held in Ram Kesh Yadav (supra), the employer had an option to inform the employee that compassionate appointment could not be given in view of the existing norms, and that it would consider the employee's request for retirement on medical grounds by delinking Page 5 of 6 CAT, Lucknow Bench OA No. 332/00321 of 2022 Mitthu Lal & Another Vs U.O.I. & Ors.
the request of voluntary retirement from the request of compassionate appointment. As per above discussion, this was not done in this case. .....
Consequently, we direct that compassionate appointment, in the applicable post, be given to the Appellant's son Mukesh Mewari within a period of 4 weeks from the date of communication of this order..."
(emphasis supplied) 6.5 In the instant case also, the respondents have failed to elucidate as to why the application of RBE No. 107 of 1995 dated 22.09.1995 and RBE No. 78 of 2006 dated 14.06.2006 should not be applicable in the applicants' case. Further, the composite offer of voluntary retirement preferred by applicant no. 1 has not been accepted in toto; only voluntary retirement of applicant no. 1 has been accepted while rejecting compassionate appointment of his son, applicant no. 2. The applicant no. 2 is, therefore, entitled to be considered for appointment on compassionate ground.
7.1 In view of the foregoing, the order dated 15.06.2022 and order dated 20.02.2020 are quashed and set aside.
7.2 The respondents are directed to consider appointment of applicant no. 2 on compassionate grounds in terms of RBE No. 107 of 1995 dated 22.09.1995 and RBE No. 78 of 2006 dated 14.06.2006 within a period of two months from the date of receipt of certified copy of this order. 7.3 The OA is disposed of in above terms.
7.4 Pending MAs, if any, are also disposed of.
7.5 Parties shall bear their own costs.
(Pankaj Kumar) Member (A) Warij Page 6 of 6