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2022 DIGILAW 1906 (RAJ)

Union Of India v. Deva Ram S/o Sh. Ratna Ram

2022-06-30

SANDEEP MEHTA, VINOD KUMAR BHARWANI

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JUDGMENT : MEHTA, J. 1. The instant writ petition has been preferred by the Union Of India (Railways) for assailing the order dated 17.01.2020 passed by Central Administrative Tribunal, Jodhpur Bench whereby, the Original Application No.290/00004/2017 filed by the respondent Shri Deva Ram was accepted and a direction was given to the petitioners to reconsider his case for appointment on compassionate grounds in place of the late Railway Employee Shri Ratna Ram being the adoptee father of Shri Deva Ram on a Group ‘C’ or ‘D’ post and to grant it to him, if he was found otherwise eligible. 2. Brief facts relevant and essential for disposal of the writ petition are noted hereinbelow:- 3. Late Shri Ratna Ram was employed as a Gang Man under PWI, Western Railways, Jalore. Shri Ratna Ram adopted the applicant respondent Shri Deva Ram through a registered adoption deed dated 18.11.1997. At that time, Shri Deva Ram was four years old. Shri Ratna Ram expired on 25.11.1997 while being in service. Nomination details were sought for so that the pension and terminal benefits could be disbursed. Information was provided that Deva Ram had been taken in adoption by Shri Ratna Ram and that he was the only legal heir of the employee. Shravan Ram, natural father of the applicant respondent, moved an application under Section 10 of the Guardian and Wards Act in the court of District Judge, Merta and secured a Guardianship Certificate and was appointed as guardian of the applicant respondent to receive payment of terminal benefits of Shri Ratna Ram on behalf of the minor vide order dated 30.07.1999. The employer sanctioned pension and other terminal benefits in favour of the respondent Deva Ram. The respondent applicant qualified the Secondary Examination whereafter, he submitted an application in the year 2013 to the competent authority claiming compassionate appointment on the ground of being the ward and sole dependent of late Shri Ratna Ram, Gang Man. No response was forthcoming to the said application on which, another application dated 02.11.2016 was filed by the applicant respondent giving reference of the earlier application and the Railway authorities were requested to consider his case for compassionate appointment. No response was forthcoming to the said application on which, another application dated 02.11.2016 was filed by the applicant respondent giving reference of the earlier application and the Railway authorities were requested to consider his case for compassionate appointment. The Railway authorities, in turn, informed the applicant by order dated 07.12.2016 that the Godnama under the Act of 1956 was not procured as per law and hence, it could not be considered valid for grant of compassionate appointment. Thereupon, the respondent applicant filed the application before the Central Administrative Tribunal, seeking a direction for being afforded compassionate appointment which has been accepted vide order dated 17.01.2020, which is assailed in this writ petition. 4. Shri Vijay Kumar Vyas, learned counsel representing the employer writ petitioner, vehemently and fervently urged that compassionate appointment cannot be claimed as a matter of right. It is an exception to the rule of normal recruitment. Merely because the reason assigned in the order dated 07.12.2016 for denying appointment to the applicant is erroneous, he cannot claim compassionate appointment in place of the late employee Shri Ratna Ram, as of right. He urged that the respondent has already been granted pension and other terminal benefits pursuant to the death of Shri Ratna Ram. The scheme of compassionate appointment has been framed to tide over the family of the employee dying in harness from immediate financial crisis and penury. Since, the adoptee father of the respondent passed away way back in the year 1996 and as, the appellant has already received the pensionary and terminal benefits pursuant to the death of Shri Ratna Ram, his claim for compassionate appointment was not tenable. In support of his contentions, Shri Vyas placed reliance on the Division Bench Judgment of this Court in the case of Union of India Vs. CAT & Ors., (D.B. Civil Writ Petition No.1652/2002) decided on 07.08.2002 reported in 2003 (3) SLR 310. On these grounds, Shri Vyas implored the Court to accept the writ petition and set aside the impugned order passed by the learned Tribunal. 5. CAT & Ors., (D.B. Civil Writ Petition No.1652/2002) decided on 07.08.2002 reported in 2003 (3) SLR 310. On these grounds, Shri Vyas implored the Court to accept the writ petition and set aside the impugned order passed by the learned Tribunal. 5. Per contra, Shri S.K. Malik, learned counsel representing the respondent (applicant before the Tribunal), vehemently and fervently urged that the appointment on compassionate grounds in the railways is governed by Master Circular No.16 wherein, there is no restriction that the wards of the railway employees concerned, would be entitled to claim compassionate appointment only if the family is faced with an imminent financial crisis. He urged that as per this Circular, if the ward is minor on the date of death of the employee, he can claim compassionate appointment on gaining majority. He submitted that the reason which has been assigned in the order dated 07.12.2016 for rejecting the application for compassionate appointment submitted by the respondent applicant, was that his adoption by the deceased employee was not made as per law. However, in the reply before the Tribunal and before this Court as well, this reason has been supplemented/substituted by new grounds. As per Shri Malik, the petitioners are estopped from adopting a different reasoning from what was mentioned in the original order rejecting the claim of the respondent for grant of compassionate appointment. In support of this contention, Shri Malik placed reliance on the Hon’ble Supreme Court’s Judgment in the case of Rashmi Metaliks Ltd. & Anr. Vs. Kolkata Metropolitan Development Authority & Ors., reported in (2013) 10 SCC 95 . He also relied upon the Hon’ble Supreme Court’s judgment in the case of Kamla Rani Vs. Ram Lalit Rai @ Lalak Rai (Dead) through Legal Representatives & Ors., reported in (2018) 9 SCC 663 and urged that the factum of adoption of the applicant respondent was accepted by the respondent way back in the year 1999. They cannot now be allowed to take a different stand and question the validity of the registered adoption deed. He thus implored the court to dismiss the writ petition and affirm the direction given by the Tribunal by impugned order dated 17.01.2020 to offer compassionate appointment to the respondent. 6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned order and other material available on record. 7. He thus implored the court to dismiss the writ petition and affirm the direction given by the Tribunal by impugned order dated 17.01.2020 to offer compassionate appointment to the respondent. 6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned order and other material available on record. 7. It is apparent that the reason assigned by the competent authority in the order dated 07.12.2016 while rejecting the application for compassionate appointment filed by the respondent applicant that his adoption was not carried out as per law, is not tenable on the face of the record. The employer accepted the claim for grant of terminal benefits made on behalf of the respondent in the capacity of the adopted son/ward of the deceased employee and hence, they cannot at a later stage change their stance and claim that adoption was not valid. Otherwise also, the respondent herein was adopted by late employee Shri Ratna Ram through a registered adoption deed which the employer accepted while dealing with the claim for terminal benefits and thus, the legality of the adoption deed cannot be questioned now. 8. While opposing the original application filed by the respondent in the Tribunal, the employer writ-petitioners herein adopted a totally different stand, asserting that compassionate appointment is not a matter of right and merely because the respondent had been adopted by the employee, he could not claim compassionate appointment ipso facto on the death of Shri Ratna Ram. We may note here that Hon’ble the Supreme Court has time and again considered this issue and has held that compassionate appointment is an exception to the general rule of appointment to government posts and infringes upon the principles of equality and fairness as enshrined under Articles 14 and 16 of the Constitution of India. The opportunity of seeking compassionate appointment is provided to the family of the deceased government employee to tide over immediate financial crisis and to avoid penury. 9. Shri Vyas relied upon Division Bench judgment of this Court in the case of Union of India vs. CAT (supra) wherein scheme of compassionate appointment prevailing in the railways was examined and this Court observed as below:- “6. The appointment on compassionate ground makes a departure from the provisions providing for the appointment on the post by following a particular procedure. The appointment on compassionate ground makes a departure from the provisions providing for the appointment on the post by following a particular procedure. The doctrine of equality before law and equal opportunity in the matter of employment, enshrined under Article 14 & 16 of the Constitution of India demand appointed in public service strictly on the basis of open invitation of application and merit. Any rule providing appointment in violation of the doctrine of equality is ultravires and not required to be followed, except in exceptional cases, on strict construction of the rule or circular, only to meet a contingency at a particular moment. Thus, a public authority or court or tribunal while considering a case for appointment on compassionate ground in public service should keep in mind that such an appointment being exception to the general rule, they need not be extra benevolent for an individual, at the cost of thousands of meritorious unemployed youth. 7. In Umesh Kumar Nagpal Vs. State of Haryana and Others reported in 1994 (4) SCC 138 the Apex Court has held that the public services on compassionate ground has been carved out as an exception in the interest of justice to the general rule that appointment in the public services should be made strictly on the merit and no other mode of appointment nor any other consideration is permissible. The court further held that a compassionate appointment is made out of humanitarian consideration with a view to provide livelihood to the family of the deceased so that they are able to make both ends meet. The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. 8. Thus, the Railway Board’s circular, referred to above, which empowers the authority to give appointment even after 20 years of the death of employee is contrary to the general provision providing appointment, to the extent it travels beyond providing appointment to a member of the family of the deceased to tide over the sudden crisis, such appointment interferes with the right of other persons who are eligible for appointment to seek employment against the post which may be made available to them. The Apex Court in Director of Education (Secondary) and Another Vs. The Apex Court in Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others reported in 1998(5) SCC 192 dealing with such a situation observed : “On such a construction, the said provision in the Regulations would be open to challenge on the ground of being violative of the right to equality in the matter of employment inasmuch as other persons who are eligible for appointment and who may be more meritorious than the dependents of deceased employees would be deprived of their right of being considered for such appointment under the rules.” 9. Thus, the circular relied upon by the second respondent unduly interferes with the right of other persons who are eligible for appointment, is arbitrary and discriminatory to the extent indicated above. Thus, we are of the view that the Central Administrative Tribunal, Jodhpur has committed serious illegality in adopting a very generous, general and casual approach and thereby issuing directions to the appellant to consider the case of the respondent for appointment on compassionate ground.” 10. Thus, this Court has expressed its reservations on the Scheme for compassionate appointment prevailing in Indian Railways. It is pertinent to note that the Master Circular No.16 prescribes the conditions under which, the dependents of employee dying in harness while in service can claim compassionate appointment. Clause (x) of the Circular is reproduced hereinbelow for sake of ready-reference:- “x. Where the widow cannot take up employment, Railways can keep the “case for appointment on compassionate grounds open to enable consideration of appointment of a minor son when he attains majority, even though at the time of occurrence of the event making compassionate appointment permissible, there is a daughter who has attained majority and/or a major son who is already employed. This will be subject to the following conditions:- a. The minor son to be appointed will be attaining majority of age within a period of five years of the event of death which is the basis for appointment on compassionate grounds. b. Where there is more than one minor son, it is only the eldest minor son who should be considered for appointment when he attains majority and not any of the minor sons. b. Where there is more than one minor son, it is only the eldest minor son who should be considered for appointment when he attains majority and not any of the minor sons. c. Further in such cases, the competent authority should be satisfied about the bonafides of the request of the widow or if there is no surviving widow, of the family, that appointment should be given to a minor son (when he attains majority) instead of a daughter or an employed son who is already a major. [No.E (NG)II/84/RC-1/172 dated 1.3.1985. (RBE 65/1985)]” (Emphasis supplied) 11. Clause (x) of the Master Circular makes it clear that a son, who is minor at the time of death of the employee, can stake a claim for appointment on compassionate basis subject to the condition that he would be attaining majority within a period of five years of the event of death. The respondent Shri Deva Ram applied for appointment on compassionate basis upon attaining majority and the qualification for the post. However, the respondents rejected his application for a sole reason that he was not adopted as per law. The said reason is apparently unsustainable. Despite that and even though the order of rejection of the respondent’s application dated 02.11.2016 for grant of compassionate appointment is unsustainable yet, there is a serious question mark as to whether he can still stake a claim for compassionate appointment because the clause (x) of the Master Circular No.16 quoted hereinabove, makes it clear that the claim for compassionate appointment by the dependent, who was minor at the time of death of Government employee would only be entertained, if the minor would be attaining majority within a period of five years from the event of death. The intention of this circular is thus clear that the position left vacant by the death of the government employee in harness cannot be kept in the same stagnated condition for a period beyond five years. If at all, the respondent was aggrieved by the said condition of the Circular, he would be required to challenge the validity thereof. Nonetheless, on going through the order passed by the learned tribunal, we do not find that any such prayer was made in the original application to question the validity of the Master Circular. If at all, the respondent was aggrieved by the said condition of the Circular, he would be required to challenge the validity thereof. Nonetheless, on going through the order passed by the learned tribunal, we do not find that any such prayer was made in the original application to question the validity of the Master Circular. Even if the view taken by the Tribunal in quashing the order dated 07.12.2016 is affirmed, despite that the appellants would be required to consider the application of the respondent in light of the Master Circular (supra) wherein, the respondent does not qualify because admittedly, he was four years of age when the incident of death of his adoptive father Shri Ratna Ram, a government employee, occurred and as a natural consequence, the application for compassionate appointment would have been filed well after the statutory limitation of five years prescribed in Clause (x) of Master Circular, referred to supra. Thus, the direction given by the Tribunal to consider the case of the respondent for compassionate appointment is nothing but an exercise in futility. 12. Hence, the writ petition is disposed off in the manner that the observations made by the Tribunal in the impugned order dated 17.01.2020 to the extent the order dated 07.12.2016 was set aside deserves to be affirmed. However, the direction given to consider the case of the respondent for compassionate appointment is not sustainable in view of the bar of five years stipulated under the Master Circular No.16 (supra). In addition thereto, we cannot loose sight of the fact that in the judgment of Union of India vs. CAT (supra), relied upon by Shri Vyas, this Court has expressed serious reservations on the validity of the Master Circular. Thus, for this reason and so also for the reason that application for compassionate appointment was filed by the respondent beyond the period of five years as prescribed under Clause (x) of the Master Circular No.16, he is dis-entitled to stake a claim for appointment on compassionate basis. Hence, the impugned order dated 17.01.2020 passed by the Central Administrative Tribunal is declared invalid and set aside. There shall be no order as to cost. 13. The writ petition is allowed in these terms.