Bombay High Court
Union Of India Through The General ... vs Shri Velumani Chinnasamy Sanyasi on 16 December, 2016
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7031 OF 2015
Union of India
Through the General Manager,
Central Railway, CSTM
Mumbai 400001.
2. The Divisional Railway Manager
Personnel Branch,
Central Railway, CSTM,
Mumbai 400001. ... Petitioners
V/s.
Shri Velumani Chinnasamy Sanyasi
R/at Room No.5, Railway Quarter
No.MS/RB/I, Building No.11,
Juinagar, Sector 22,
Navi Mumbai ... Respondent
Mr. Suresh Kumar a/w. Ms. Sangeeta Yadav for the petitioner.
Ms. Priyanka Mehndiratta for the respondent.
CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
RESERVED ON : 20th October, 2016.
PRONOUNCED ON : 16th December, 2016.
JUDGMENT (PER NARESH H. PATIL, J)
Rule. Rule made returnable forthwith. Heard finally by consent of
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the parties.
2. The petitioner challenges judgment and order dated 19 th
December, 2014 passed by Central Administrative Tribunal in Original
Application No.592/2013. Briefly stated the facts as described by the
petitioner in his petition are as under:-
The father of respondent no.1 was railway employee who joined the
service from 3rd December, 1981. While in service he died on 20th
December, 1997.
ig He was survived by his wife and four sons i.e.
Velumurugan aged about 14 years, the respondent herein aged 11 years,
Hayaraja aged about 7 years and Selakumar aged about 5 years.
3. The elder son Velumurugan applied for appointment on
compassionate ground on 26th November, 2001 on his mother giving no
objection in his favour on 10th January, 2002. The application filed by
Velumurugan was rejected as it was found that he produced a bogus
certificate. The decision of administration was communicated by the
letter dated 23rd September, 2002 (Exhibit B). Another son of deceased
i.e. respondent no.1 applied for appointment on compassionate ground
on 17th July, 2009.
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4. The Original Application bearing No.470/2009 was filed on 7 th
August, 2009 which came to be allowed by the CAT vide order dated 20 th
April, 2011 with a direction to consider application filed by the respondent
for appointment on compassionate ground. It was directed that the
rejection of the application of the brother of the respondent in the year
2001 will not come in the way of the respondent. The respondent filed
application for compassionate appointment after he attained majority.
5.
The petitioner filed a writ petition against the order dated 20 th April,
2011 bearing Writ Petition No.8852/2011. The said writ petition was finally
disposed of by Division Bench of this Court (Coram: D.K.Deshmukh &
Anoop V. Mohta, JJ) by an order dated 8 th December, 2011 which reads
as under:-
Heard.
2. By the order impugned, all that the CAT has done is
that it has directed the Petitioner to consider the
application made by the Respondent for appointment on
compassionate ground. All the grounds are available to
the Petitioner. The only direction which is required is that
the application should be considered in accordance with
law. If law permits, the Petitioner to reject the application
on the ground that the elder brother's application for the
same relief was rejected and that order has not been
challenged, the Petitioner will be at liberty to give such a
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ground. Of course, it will be open to the Respondent to
challenge such an order if so advised. No interference is
called for. Writ Petition is dismissed. No costs.
6. Consequent to the order passed by the High Court, the petitioner
reconsidered the application filed by the respondent. By communication
dated 5th February, 2013 the petitioner rejected the application of the
respondent. Thereafter the respondent again preferred an original
application bearing OA No.592/2013 before the Central Administrative
Tribunal challenging the communication dated 5th February, 2013. A
written-statement was filed by the petitioner on 14th February, 2014.
7. By impugned judgment and order dated 19th December, 2014 the
Central Administrative Tribunal directed petitioner to appoint the
respondent on compassionate ground. This order is subject matter of
challenge in the present petition.
8. Learned Counsel appearing for the petitioner submitted that the
impugned order of Tribunal is unreasonable and erroneous one. In the
facts there is no need now to appoint respondent on compassionate
ground after the family survived for near about 17 years after the death
of bread earner i.e. father of the respondent. This is not a fit case for
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upholding the order of the Central Administrative Tribunal. It was brought
to our notice that the application filed by the brother of the respondent
was rejected in the year 2002 and the respondent thereafter filed an
application in the year 2005. Reliance was placed on the Master Circular
No.16 by the learned Counsel. On merits it was submitted that deceased
employee died in the year 1997 and after 17 years it would not be
reasonable and proper to consider respondent for appointing him on
compassionate ground. Learned Counsel submitted that Railways had
clarified in its circular dated 16 th August, 2007 wards/child producing fake
certificate do not deserve any compassion and any claim in this regard by
any of wards/child need to be summarily rejected. The fundamental
principle of the rules is to 'mitigate' immediate financial distress of the
family which arises on the sudden demise of the bread earner.
9. Learned Counsel submitted that in this case the spouse of the
employee was deriving two pensions and had grown up children.
10. The Counsel appearing for respondent submitted that the earlier
order passed by the Tribunal was not obeyed by the railway
administration. The railway administration had again referred to the
services of the petitioner's mother who was working as woman khalasi in
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railway and drawing family pension. The said reason was not to be
considered while deciding application of the respondent. The delay in
considering the case of respondent had occurred due to fault of the
petitioners' administration. They have taken unnecessary time and
delayed the consideration of the application filed by the respondent and
continued litigation without justifiable cause. The learned Counsel
submitted that the respondent is in a need of work. The family needs
reasonable income to survive and it would not be permissible for the
petitioner to say that even at this stage the respondent would not be
entitled to apply under Master circular or any other circular issued by the
railway administration. The Tribunal had rightly considered the facts of
the case and after considering the over all facts and circumstances had
reached the appropriate conclusion directing appointment of respondent
on compassionate ground.
11. Both the learned Counsel appearing for the respective parties
referred to the judgments on settled principles of appointment on
compassionate ground which are placed on record. Learned Counsel
appearing for the petitioners referred to following case laws:
i) Local Administration Department & anr. v/s. M.
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Selvanayagam Alias Kumaravelu {(2011) 13
Supreme Court Cases 42}.
ii) Union of India & anr. V/s. Shashank Goswami &
anr. {(2012) 11 Supreme Court Cases 307}
iii)Union of India & anr. v/s. B. Kishore {(2011) 13
Supreme Court Cases 131}.
iv)Union of India & ors. v/s. Bhagwan Singh {(1995)
6 Supreme Court Cases 476.
v) Umesh Kumar Nagpal v/s. State of Haryana & ors.
{(1994) 4 Supreme Court Cases 138
vi)State of U.P. & ors. v/s. Paras Nath {(1998) 2
Supreme Court Cases 412}.
Learned Counsel appearing for respondent has referred to the Supreme
Court judgment in the case of Balbir Kaur & anr. v/s. Steel Authority of
India Ltd. & ors. and in the case of Meenakshi (Smt.) & anr. v/s. Steel
Authority of India Ltd. & ors. {2000 Supreme Court Cases (L & S)
767}.
12. We have perused the record, the impugned judgment and order
and the case laws cited above. The principles regarding the consideration
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of the application on compassionate ground are settled by now. Claiming
appointment on compassionate ground is not a vested right. It would
amount to an other mode of recruitment of a person. Each case would
depend on facts and circumstances of its own. The rules framed in this
behalf by the employer, the instructions issued and circulars are guiding
principles for the employer to take appropriate decisions in such matters.
In certain cases it has been held that if the family survives for number of
years i.e. for more than 10 to 15 years after the loss of bread winner then
the case has to be looked into carefully as to whether the application for
appointment on compassionate ground at that stage was required to be
considered.
13. In the facts, we are informed that both the mother and father of the
respondent were working with Railways. The mother was receiving
pension from railway administration. It is unfortunate and sad that while
on duty the respondent's father succumbed to injuries and died. One of
the brother of the respondent had earlier filed an application on
compassionate ground which came to be rejected as he filed some bogus
certificate.
14. It is informed that respondent became major and he filed a fresh
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application. In the communication dated 5 th February, 2013 the railway
administration informed that the family had failed to establish strong merit
of financial distress for granting appointment on compassionate ground.
The case was examined in accordance with Railway Board'd letter dated
1st March, 1985. It was found that the case lacked merits. There is a
reference made to the services of respondent's mother who at the
relevant time was working as a woman Khalasi in railways and was
drawing pension of her husband. But merely by giving reference of the
same by the department, it shall not be construed to be a ground for
rejecting the request of the respondent for appointment on
compassionate ground. We find that on the whole the railway
administration had taken into consideration the case in its entirety and
had reached its conclusion.
15. In the facts the railway administration after taking into consideration
their norms, rules and circulars and in particular the facts of the case
formed an opinion that after near about 17 years of death of father of
respondent and on merits no case was made out for giving appointment
on compassionate ground. We do not find the decision to be perverse or
against the established principles governing the rules. The Tribunal had
directed to provide appointment on compassionate ground to the
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respondent. Taking into consideration the peculiar facts and
circumstances of the case and considering the law laid down on the
subject of appointment on compassionate ground, we are not in
agreement with the view expressed by the Tribunal.
16. In the facts, we are of the view that the decision taken by the
railway administration cannot be faulted. We are, therefore, not inclined
to uphold the order passed by the Tribunal.
ORDER
I) The Writ Petition is allowed.
II) The impugned Judgment and order dated 19th
December, 2014 passed by the Central Administrative
Tribunal in Original Application no. 592 of 2013 is hereby
quashed and set aside.
17. The rule is made absolute in the above terms.
(PRAKASH D. NAIK, J.) (NARESH H. PATIL, J.)
L.S. Panjwani, P.S.
