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2013 DIGILAW 25 (RAJ)

Union of India v. Kumari Kiran Chowdhary

2013-01-04

AMITAVA ROY, NARENDRA KUMAR JAIN

body2013
JUDGMENT 1. - Heard finally with the consent of learned counsel for the parties. 2. Petitioners have preferred this writ petition challenging the impugned order dated 02.05.2012 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to as 'the Tribunal'), whereby Original Application No. 398/2011, filed by applicant/respondent, has been disposed off, with a direction to the non-applicants/ petitioners to consider her case for compassionate appointment. 3. Briefly stated, the facts of the case, are that the applicant's brother Rajesh Choudhary was a regular Railway employee, who died on 10.10.2009 while in service; he was a bachelor; the father of the applicant retired from the post of Sub Inspector, RPF on 31.08.2003. The case of the applicant is that after superannuation of her father, there were disputes within the family and differences cropped up over the issue of marriage of the applicant. The applicant, therefore, started living with her brother, she became fully dependent on her brother Rajesh Choudhary. Her name was entered in the Ration Card of her brother and her name was also mentioned in the voter list. The applicant, thereafter, completed the educational qualification of M.A., Ph.D. from J.N.V. University, Jodhpur. Soon after the death of her brother, she applied for compassionate appointment, vide her application dated 19.11.2009 along with supporting documents. Respondent No. 4 rejected her application vide order dated 04.02.2010, on the ground that applicant is not included as a dependent in the Past/PTO declaration, submitted earlier by the deceasedemployee and her father is alive and is a railway pensioner. The applicant further gave her application to respondents and invited their attention towards the Circulars dated 17.09.1996 and 02.05.1997 and pointed out that where a Government servant is unmarried at the time of his death and has no other dependent, then one of the dependent brothers/sisters of the Government servant in question will be eligible for appointment on compassionate ground. It was also mentioned that name of the applicant was mentioned in the ration card of the deceased-Government servant, therefore, as per Circulars of the respondents, she was dependent of deceased- Government servant, therefore, she may be given compassionate appointment. Her application was again rejected, therefore, she preferred Original Application before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur, which was disposed off vide order, impugned in this writ (3) DB CIVIL WRIT PETITION 8088/2012 petition, preferred on behalf of the non-applicants. 4. Her application was again rejected, therefore, she preferred Original Application before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur, which was disposed off vide order, impugned in this writ (3) DB CIVIL WRIT PETITION 8088/2012 petition, preferred on behalf of the non-applicants. 4. Submission of the learned counsel for petitioners is that the learned Tribunal has committed an illegality in recording a finding that applicant was dependent of deceased- Government servant on the basis of entry of her name in the ration card, whereas her name was not there in the nomination of PF form of the deceased-Government servant. He further submitted that name of the applicant was not mentioned in the Pass also. He also submitted that name of the applicant was mentioned as second nominee in the PF Account of her father. He, therefore, submitted that the learned Tribunal has committed an illegality in coming to a conclusion that applicant was dependent of her deceased-brother, the Government servant and she is entitled for her consideration for compassionate appointment. 5. Learned counsel for respondent supported the impugned order passed by the Tribunal. He also referred the Circulars of Railway dated 17.09.1996 and 02.05.1997 and pointed out that if a Government servant is unmarried at the time of his death, then one of the dependent brothers/sisters of the deceased-Government servant, is eligible for consideration for appointment on compassionate ground, if he/she gives an undertaking that he/she will look after the other family members, who were dependents on the Government servant in question. He also referred a copy of ration card, available on record, wherein name of applicant finds place along with deceased-Government servant. He also submitted that after the retirement of applicant's father, there were differences in the family members over the issue of marriage of the applicant and the applicant started living with her brother and at the time of death of her brother, she was fully dependent on her brother. He also submitted that applicant has qualified her examination of M.A., Ph.D. from J.N.V. University, Jodhpur. He further submitted that the Tribunal has only issued a direction to the respondents to consider the candidature of applicant and has not directed to give appointment. 6. He also submitted that applicant has qualified her examination of M.A., Ph.D. from J.N.V. University, Jodhpur. He further submitted that the Tribunal has only issued a direction to the respondents to consider the candidature of applicant and has not directed to give appointment. 6. Learned counsel for the respondent also submitted that question of dependency is purely a question of fact and the Tribunal, being a fact finding body, its finding of fact, cannot be interferred with by this Court, while exercising its powers under Article 227 of the Constitution of India, unless the finding is perverse. He submitted that finding of the Tribunal in this regard is not perverse, therefore, the writ petition filed by the petitioners, is liable to be dismissed and be dismissed. 7. We have considered the submissions of the learned counsel for the parties and examined the impugned order passed by the Tribunal, along with other documents. 8. So far as the facts of instant case are concerned, there is no dispute that applicant's brother Late Shri Rajesh Choudhary was a regular Railway employee, who died on 10.10.2009 while in service. The father of the applicant retired on 31.08.2003. As per averments made in the Original Application, there were differences between the family members of the applicant over the issue of her marriage and she started living with her brother Rajesh Choudhary. She passed her M.A. and Ph.D. Examinations from J.N.V. University, Jodhpur. Same submissions, which were advanced by the learned counsel for both the parties before the Tribunal, have been advanced here before us. Submissions of both the parties were considered, in detail, by the Tribunal and a finding of fact has been recorded that applicant was dependent on her brother Late Shri Rajesh Choudhary, who died while in service, on 10.10.2009. 9. For ready reference, Circular No. E-33/O-VII/CG dated 17.09.1996 and supplementary Circular No. 23 to Master Circular No. 16, issued vide No. E/(NG)II/88/RC-1/1/77 Policy, dated 02.05.1997, are reproduced as under:- "2. Board have, however, been considering cases of dependents of Railway employee dying as bachelors/ spinsters on a case to case basis, subject to the condition that the proposal has the personal approval of the General Manager of the Railway and that the candidate proposed for appointment is shown as dependent upon the late employee as per the Pass Rules. 3. Board have, however, been considering cases of dependents of Railway employee dying as bachelors/ spinsters on a case to case basis, subject to the condition that the proposal has the personal approval of the General Manager of the Railway and that the candidate proposed for appointment is shown as dependent upon the late employee as per the Pass Rules. 3. The department of Personnel & Training have recently issued instructions laying down that in the cases of Government servants who at the time of their death in harness or retirement on medical grounds are unmarried, but have others dependent on them, one of the dependent brothers/ sisters of the Government servants in question will be eligible for consideration for appointment on compassionate grounds if he/she gives on undertaking that he/she will look after the other family members who were dependent on the Government servants in question provided the other conditions laid down in the scheme of compassionate appointment are fulfilled." Supplementary Circular dated 02.05.1997: "2. The matter has been examined further in consultation with Department of Personnel & Training and it has been decided that in partial modification to Board's letter of even number dated 04.09.1996(Bahri's RBO 1996, P-75), the Railway should verify the genuineness of the claim of dependency for appointment of dependents of Railway employee dying as bachelors/spinsters on the basis of documents such as inclusion of the name of the family members in the pass(as dependents) or in ration card etc." 3. In the absence of any such documentary proof, the factual position regarding the extent of dependency may be verified by deputing a Welfare Inspector to inquire into the circumstances." 10. From the Circular dated 17.09.1996, issued by the petitioners, it is clear that in case, a Government servant, who at the time of his death, was unmarried and had dependent on him, one of the dependenet brothers/sisters will be treated as eligible for consideraion for appointment on compassionate ground, subject to fulfilment of other conditions. 11. Similarly, from the Circular dated 02.05.1997, reproduced above, it is also clear that genuineness of the claim of dependency for appointment of dependents of Railway employee dying as bachelor/spinsters, will be decided, on the basis of documents such as inclusion of the name of the family members in the pass or in the ration card etc. 12. 11. Similarly, from the Circular dated 02.05.1997, reproduced above, it is also clear that genuineness of the claim of dependency for appointment of dependents of Railway employee dying as bachelor/spinsters, will be decided, on the basis of documents such as inclusion of the name of the family members in the pass or in the ration card etc. 12. A copy of ration card has been placed on record, from which it is clear that name of applicant find place in the ration card of her brother. The question of dependency, is purely a question of fact. The learned Tribunal, after considering the submissions of learned counsel for both the parties and documentary evidence available on record, negatived the submissions of the Department. However, the learned Tribunal has made it clear that what the applicant seeks, is a right to be considered. Consideraion is not the same thing as 'eligibility', which is based upon a combination of other multiple factors i. e. indigence, immediacy, fulfillment of qualification subject to relaxations etc. The Tribunal has also clarified that 'eligibility' is different from "competitive eligibility'. Para 10 of the order of the Tribunal, is reproduced as under:- "10. Here, the Tribunal is faced with a difficult task- the documentary evidence on both sides are evenly arrayed. Sending a Welfare Inspector for enquiry at this point of time would serve no purpose as the deceased employee has been dead for more than 2 years now. Decision could be taken on the basis of the evidence on record for either side. However, it has to be kept in mind that what the applicant seeks is a right to be considered. Consideration is not the same thing as 'eligibility', which is based upon a combination of other multiple factors i. e. indigence, immediacy, fulfillment of qualification subject to relaxations etc. Again, 'eligibility' is different from "competitive eligibility'. An applicant may be eligible but he or she may not get appointment for the entire period of consideration as others may be more indigent/ destitute and therefore in greater need for employment. Here, I feel that I have scope for discretion which I choose to exercise in favour of the applicant." 13. Again, 'eligibility' is different from "competitive eligibility'. An applicant may be eligible but he or she may not get appointment for the entire period of consideration as others may be more indigent/ destitute and therefore in greater need for employment. Here, I feel that I have scope for discretion which I choose to exercise in favour of the applicant." 13. So far as submissions of the learned counsel for petitioners that name of the applicant was not mentioned in the Pass or in the nomination form of PF of deceased-employee and her name was mentioned as second nominee in her father's PF form, are concerned, the same have rightly been dealt with, in detail, by the Tribunal in paras 7, 8 and 9 of the order, which need not to be repeated and we fully agree with the same as learned counsel for the petitioners is unable to point out any perversity in the same. 14. The Tribunal has recorded a finding of fact about dependency of applicant on her brother i. e. deceased( Government servant, and this Court, while exercising its powers under Article 227 of the Constitution of India, cannot sit as a Court of appeal and is required to see only the jurisdictional error in the order of the Tribunal. We find no jurisdictional error or perversity in the order of the Tribunal. The direction of the Tribunal is only to consider the case of applicant, therefore, we find no illegality in the impugned order passed by the Tribunal, so as to interfere with the same by this Court. 15. We further observe that looking to the facts and circumstances of the present case, this order and the order of the Tribunal will not be treated as precedent. 16. In view of above discussion, we find no merit in this writ petition and the same is, accordingly, dismissed with no order as to costs. 17. Stay Application No. 582/2012 also stands dismissed.Petition dismissed. *******