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2018 DIGILAW 396 (RAJ)

Kumari Kiran Choudhary v. Union Of India

2018-02-01

PRADEEP NANDRAJOG, RAMCHANDRA SINGH JHALA

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JUDGMENT Pradeep Nandrajog, C.J —The issue which arises for consideration in the writ petition is: whether the observations in paragraph 10 of the order dated 2.5.2012 of the Tribunal allowing OA No.398/2011 filed by the writ petitioner constitute a binding direction upon the Union of India. The observations in paragraph 10 of the order in question read 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..." 2. If the observations are to be read as an expression of opinion by the Tribunal that a Welfare Officer cannot be sent for enquiry, the second question would arise: whether the report of the Welfare Inspector can be considered. If the second question is answered that the Union of India could send the Welfare Inspector, the main issue regarding dependance of the writ petitioner would need to be decided. 3. Relevant facts are that late Rajesh Choudhary, brother of the petitioner was an employee of the Railways. He was unmarried. He died on 10.10.2009. The father of the writ petitioner and late Rajesh Choudhary, Shri Mana Ram Choudhary was an employee in the Railway Protection Force and superannuated from service on 31.8.2003. He is a person of means and is drawing pension. 4. On the death of Rajesh Choudhary claiming that on account of a family dispute the writ petitioner started living with her brother and was dependant on him and in proof furnishing a ration card showing Rajesh Choudhary and writ petitioner were residing together she claimed appointment on compassionate basis vide application dated 19.11.2009. The same was rejected giving reason that petitioner's father was alive and being a retired Railway employee was drawing pension and thus the petitioner would not be a destitute dependant upon her late brother. At that stage the petitioner filed OA No.398/2011. She relied upon the ration card as proof that she was residing with her deceased brother and not the father. 5. At that stage the petitioner filed OA No.398/2011. She relied upon the ration card as proof that she was residing with her deceased brother and not the father. 5. The department relied upon declaration made by the father of petitioner's dependance and pursuant whereto a free travelling pass was also issued in the name of the petitioner as a dependant of a father. The department also relied upon nominations made by the father which showed that the family was together. 6. In its decision dated 2nd May, 2012 the Tribunal noted that the nominations would be relevant for the reason they were made before the alleged dispute of the children with their father arose. The Tribunal held that the ration card in the name of the deceased brother of the petitioner was a material piece of evidence. It was in this context that the Union of India's plea to send a Welfare Inspector for enquiry was observed by the Tribunal as an exercise in futility in paragraph 10 of the order dated 2nd May, 2012. 7. The order dated 2nd May, 2012 was challenged by the Union of India by way of D.B.Civil Writ Petition No.8088/2012 which was dismissed by a Division Bench of this Court vide order dated 4.1.2013 observing that dependance was a question of fact. The Division Bench noted that the direction by the Tribunal held the petitioner eligible to be considered for grant of compassionate appointment and thus found no fault with the order passed by the Tribunal. 8. The order dated 4.1.2013 passed by the Division Bench does not give any opinion regarding sending a Welfare Officer. 9. Considering the petitioner as eligible the Railways sent a Welfare Officer to the residence of her father who gave the report that after the death of the brother the petitioner was living with her father. 10. Based thereon the petitioner has been held not entitled to be granted appointment on compassionate basis vide order dated 21.10.2013 which has been upheld by the Central Administrative Tribunal noting that after the death of petitioner's brother she started residing with her father who draws pension and has a residential house in Jodhpur besides agricultural land in Tehsil Mandore. The Tribunal also noted that the petitioner was aged 46 years in the year 2017 and was aged 44 years when her entitlement was considered. The Tribunal also noted that the petitioner was aged 46 years in the year 2017 and was aged 44 years when her entitlement was considered. The Tribunal has noted that the observations in paragraph 10 of the earlier order dated 2nd May 2012 were urged by the Railways as mere observations for the reason entitlement to be granted appointment on compassionate basis has to take into account the financial conditions of the family. 11. The memo of parties of the instant writ petition would show that the petitioner is residing with her father in Jodhpur as of today. 12. Suffice it to hold that entitlement to be granted appointment on compassionate basis is a continuous cause and if at any point of time the cause vanishes, the right would also vanish. 13. Whilst it may be true that during the life time of petitioner's brother the siblings fought with their father and started living separately. But on the death of the brother the petitioner has moved back to her father's house. It is thus not a case where petitioner's dependance continues on her brother. Her father is maintaining her. 14. The observations by the Tribunal in paragraph 10 of its earlier order have to be read in the context of the Railway authorities requesting the Tribunal to send a Welfare Officer to break the impasse. It does not mean that the Tribunal conclusively held that the Welfare Officer cannot be sent to find the destitute status of the writ petitioner. 15. In that view of the matter the other two questions which arise for consideration answer themselves without any further reasoning. 16. The petitioner is nearing the age of 50. She has chosen not to marry. She was living with her father till when the siblings fought with their father. She moved with her brother. On the death of the brother she went back to her father. She is today a family member of the father who has means. It is not a case where the petitioner has become financially destitute on account of death of her brother. 17. The writ petition is accordingly dismissed. 18. No costs.