Mumtaj Ahemad vs Union Of India And Others
2017 Latest Caselaw 4391 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- WRIT - A No. - 30125 of 2010
 

 
Petitioner :- Mumtaj Ahemad
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Shachindra Mishra,Anand Swarup,Prabhakar Tripathi
 
Counsel for Respondent :- Govind Saran,K.P. Singh,S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri Anand Swaroop, learned counsel for the petitioner and Sri K.P. Singh, learned counsel for the respondent-Railways.

The petitioner has come up assailing the non-consideration of the petitioner for compassionate appointment after the medical de-categorization of his late father in the North-Eastern Railways, Gorakhpur-respondent. The petitioner had approached the Central Administrative Tribunal for this relief but the Tribunal dismissed the claim petition as not maintainable on the ground that the petition was barred by laches as there was no explanation as to why the petitioner did not take steps for seven years in spite of the allegations against his earlier counsel.

We may put on record that the petitioner had earlier filed a claim petition before the Tribunal which was disposed off by the Tribunal directing the concerned Authority to consider the claim of compassionate appointment of the petitioner. This order was passed in Original Application No. 926 of 1994 that was disposed off on 1st November, 2000. According to the petitioner, the said order was not complied with and therefore, he engaged a counsel to file a Contempt Application who did not appropriately inform him about the proceedings and later on the petitioner came to know that an order had been passed declining the claim of the petitioner by the respondent-Railways on 1/2.01.2001. A copy of the said order has been filed as Annexure-2 to the counter affidavit of the respondents. No contempt application came to be filed by his counsel.

Since the claim petition was dismissed on the ground of limitation and laches, the petitioner filed this writ petition and through an amendment has also prayed for quashing of the order of 2001 and for a direction to the respondents to grant the benefit of compassionate appointment to the petitioner. A prayer to set aside the order of the Tribunal has also been made.

Instead of proceeding to examine the issue of laches, on the ground whereof the Tribunal refused to entertain the claim petition of the petitioner, we have ourselves gone through the records that are available in the pleadings before us. We find that the Railways have declined the benefit of compassionate appointment to the petitioner on the ground as is evident from the order extracted hereinunder :-

"As per the Railway Rules, only if an alternate job cannot be provided to an employee after his medical de-categorization, he may be allowed to retire on medical ground after which his sons or dependents can be considered for compassionate appointment. Since, an alternate post of equivalent grade was offered to Shri Manager, therefore, his request for providing job to his wards and dependents does not arise. As far as his contention to retire w.e.f 12.07.1993 is concerned, this is also not acceptable as he cannot be retired on medical ground because he has been offered an alternative job of equivalent grade. No voluntary retirement can be accepted from a back date. Moreover, the date of application given in his representation exhibited as Annexure A-4 is 24.05.1994. Therefore, as per his own admission, he was an employee on 24.05.1994. Hence, his voluntary retirement cannot be accepted from an earlier date which is not only permitted under the rules but bad in law also. He was on the rolls of the Railway and continued to do so till 31.07.1994.

After considering all the aspects and records available on the subject, the undersigned finds no merit to consider his representation to provide a job to his ward and accordingly, it is rejected. The settlement benefits and all other dues have been paid to the employee treating him to have superannuated on 31.07.1994 which is correct. There is no ground to interfere with this order or to antedate his date of retirement to 12.07.1993 as has been claimed by him. The representation is disposed accordingly.

Please acknowledge receipt."

Assailing the said order, learned counsel for the petitioner on merits contends that as a matter of fact, the medical de-categorization of the father of the petitioner took place in 1994 itself when he was due to retire on 31st July, 1994. The fact remains that he was medically de-categorized and therefore, in view of the rules that apply to such claim of compassionate appointment through the Railways Circular dated 30th April, 1979, the respondents virtually bypassed the same by attaching the late father of the petitioner under the Principal System Training School in Gorakhpur itself. This attachment, according to the learned counsel for the petitioner, does not amount to providing an alternative job and since the Railways failed to provide an alternative job according to the medical de-categorization of the employee, the rule of compassionate appointment sets into motion and can be pressed into service on the facts of the present case. It is therefore, urged by the learned counsel for the petitioner that the attachment order, copy whereof has been filed as Annexure-2 to the writ petition, does not in any way amount to an alternative employment and this was a subterfuge to ensure that the employee's dependents do not get compassionate appointment.

The respondents have come up with a case that the Circular on which reliance has been placed itself indicates that if employees are medically de-categorized for the job that they are holding, and if no alternative employment can be provided in the same category of the post that they were holding, then one son or daughter of the said employee would be eligible for compassionate appointment if the employee opts to retire.

On the said rule, the respondents have come up with a case that it is correct that no other post of equivalent grade was available but at the same time, the petitioner's father was continued in the same grade and pay till his retirement for which it would be appropriate to extract paragraph-5 of the counter affidavit :-

"That the Mechanical workshop being a safety area most of the categories have either C-one or above medical standard. As no post of equivalent grade and medical standard were available in Mechanical Workshop, Gorakhpur, Sri Manger Ahmad was posted under Principal System Training School in Gorakhpur itself in the same grade and pay scale vide an office order No. Ka/14/IV/I (BGPOH) II dated 06.05.1994 but Sri Manger Ahmad did not join to the post of equivalent emoluments offered to him. The photo copy of the order is being annexed and marked as Annexure CA-1 to the counter affidavit."

Accordingly, it is submitted that in the absence of any lowering of the status, category or employment of the employee, his son or daughter would not be entitled to any such compassionate appointment as per the rules applicable and relied on by the petitioner himself. It is also submitted that this was not a mere attachment but it was a posting till the retirement where his services was to be utilized for model maintenance work. Thus, this is not a case of denial of employment.

We have considered the sub missions raised and perused the rules. Clause-3 of the Circular dated 30th April, 1979 is extracted hereinunder :-

"(3) The appointments on compassionate grounds may also be offered in cases where the employees while in service become crippled, develop serious ailments like heart diseases, cancer etc. or otherwise become medically decategorized for the job they are holding. If no alternative job with the same emoluments can be offered to them, one son/daughter should be eligible for compassionate appointment if such an employee opts to retire."

According to the said rule, we may first put on record that the petitioner came to be attached till his retirement with the Principal System Training School in Gorakhpur itself till his retirement in the same scale of pay which is evident from the order dated 6th May, 1994 filed as Annexure-2 to the writ petition and which stands substantiated by the averments made in paragraph no. 5 of the counter affidavit. Learned counsel submits that this amounts to an attachment and not alternative employment. This argument cannot be accepted for the simple reason that the petitioner's late father instead of being given alternative employment or post which was not available of an equivalent status, he came to be continued on the same post which he was holding prior to medical de-categorization and retired as such with a rider that his services would be utilized for model maintenance work. This offer therefore was a suitable substitute in the same grade without any reduction in status or emoluments. The petitioner's father did not join and he did not proceed to perform his duties and within a span of four months, he retired on 31st July, 1994. It is thus, evident that the petitioner's father was continued on an equivalent post yet he did not choose to voluntarily perform duties that appears to have been offered to him. The employee's dependent therefore dis-entitled himself from any such benefit as per Clause-3 of the Circular aforesaid.

In the aforesaid circumstances and any material to the contrary, we are unable to find any cause even on merits, apart from the laches on the basis whereof the claim petition of the petitioner had been rejected by the Tribunal. There is no merit in the writ petition.

Accordingly, the writ petition is dismissed.

Order Date :- 14.9.2017

Sumit S