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2007 DIGILAW 113 (CAL)

UNION OF INDIA v. HIMALA RANI MA]Lick

2007-02-22

BHASKAR BHATTACHARYA, KISHORE KUMAR PRASAD

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( 1 ) THIS application under Article 226/227 of the Constitution of India is at the instance of Union of India, the employer and is directed against order dated 31st August, 2005 passed by the Central administrative Tribunal, Calcutta Bench in O. A. No. 863 of 2005 thereby allowing an application under section 19 of the Administrative tribunal Act, filed by the private respondent. ( 2 ) THE following facts are not in dispute. The predecessor-in-interest of the applicants before tribunal was an employee of the railway and was admitted in B. R. Singh Hospital as indoor patient and was missing from the said hospital on and from 21st May, 1997. The missing employee could not be traced and ultimately in the year 2001 the employer decided to release the settled dues to the heirs of the original employee. The wife of the employee prayed for compassionate appointment of her son the applicant No. 2; but the railway authority by letter dated 16th February, 2001 informed the applicant No. 1 that the competent authority did not consider the case as a fit one for compassionate appointment. ( 3 ) BEING dissatisfied the applicants in the past filed another application under section 19 of the Act being O. A. 435 of 2005 and the tribunal disposed of such application by directing the applicants to give a representation with further direction upon the employer to consider such representation within three months from the date of receipt of the representation of the applicants. ( 4 ) THE employer, however, rejected the application for compassionate appointment on the ground that the predecessor-in interest of the applicants at the time of missing was 56 years 4 months and 20 days old and, therefore, as per existing rules had less than 2 years of service left before his actual retirement which is a bar in considering the case of compassionate appointment. ( 5 ) BEING dissatisfied the private respondent before us filed an application under section 19 of the Act alleging that by virtue of the order dated 18th May, 1998 the age or superannuation of the railway employees had been raised to 60 years and, therefore, the stand taken by the employer that at the time of missing, namely, 21st May, 1997 the employee had less than two years of service left was not correct. ( 6 ) THE learned tribunal on consideration of the materials on record came to the conclusion that the age of retirement having been enhanced to 60 years from the month of May, 1998 when the employee would have still remained in service had he been alive, his son is entitled to get the benefit of compassionate appointment if other conditions eligible for getting such appointment are present and thus, directed the employer to reconsider the case on the basis of the existing circular for such appointment. ( 7 ) BEING dissatisfied, the Union of India has come up with the present writ application. ( 8 ) MR. Bag, the learned Advocate appearing on behalf of the petitioner contended before us that on 21st May, 1997 the date the employee was last seen, the existing age of superannuation was 58 years and, therefore, he had less than two years of service, and such being the position, the heirs of the employee cannot take advantage of the subsequent order passed in the month of May, 1998 when the age of superannuation was further enhanced. According to Mr. Bag, in this case, we should proceed as if the employee died on 21st May, 1997 and there was no scope of getting the benefit of the age of superannuation at the age of 60 years. ( 9 ) MR. Dhole, the learned advocate appearing on behalf of the private respondent has, however, opposed the aforesaid contention of Mr. Bag and has drawn our attention to annexure P-2 the condition of grant of compassionate appointment. ( 10 ) AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that according to the then existing circulars, in case of compassionate appointment of a missing employee, no application can be entertained before the lapse of two years from the date of which the railway employee had been missing provided other conditions mentioned in the said circulars are fulfilled. In the case before us, the missing employee having been last found on 21st may, 1997, no application for compassionate appointment could be entertained before 21st May, 1999 and that time the age of superannuation has already been increased. In the case before us, the missing employee having been last found on 21st may, 1997, no application for compassionate appointment could be entertained before 21st May, 1999 and that time the age of superannuation has already been increased. Therefore, if the missing employee was alive on the date of enhancement of retirement age, he could get the benefit of the said extended age of superannuation as such extention was granted before attaining 58 years of his age. ( 11 ) WE, therefore, find that the tribunal in the fact of the present case rightly concluded that the application for compassionate appointment is very much maintainable as the missing employee was entitled to get the benefit of 60 years of age of superannuation, if he were alive. ( 12 ) WE, thus, find that there is no scope of entertaining this writ application against the order passed by the tribunal. We, accordingly, direct the employer to consider the case of compassionate appointment as if the missing employee had a more than 2 years of service in his credit on the date he was last seen and to pass final order on the basis of such application within one month from today. ( 13 ) IT goes without saying that prayer for compassionate appointment should be considered in accordance with rules and in accordance with law and should be communicated within 15 days thereafter. ( 14 ) IT is needless to mention that age of the son of the missing employee will be no bar because of the fact that on the date of application he was within the age limit and if the age limit has expired that is due to inaction on the part of the employer in not considering the application. The application is thus dismissed without any order as to costs.