Bhushan Kumar vs Union Of India And Ors
2010 Latest Caselaw 4933 Del

3
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +    W.P.(C)No.13999/2009


                                Date of Decision : 26th October, 2010
%

      BHUSHAN KUMAR          ..... Petitioner
                  Through : Ms. Rekha Palli,
                            Ms. Poonam Singh and
                            Ms. Amrita Prakash, Advs.

                       versus

      UNION OF INDIA AND ORS        ..... Respondents
                     Through : Mr. Chandan Kumar, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                   YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                  YES

3.      Whether the judgment should be                          YES
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. The petitioner was recruited with the Railway Protection

Force on 9th November, 1975 on the post of Constable and

subsequently stood promoted on the post of Head Constable in

the same Force.

2. It appears that the issue of the plight of railway

employees who were medically de-categorized for the job they

were holding who could not be offered any alternative job with

the same emoluments as well as the contingency with such

railway employees who were offered alternative employment

on the same emoluments but were not willing to accept service

had engaged the attention of the Railway Protection Force. On

such deliberations, a policy was framed and a decision was

taken to offer compassionate appointment to the

wife/wards/dependants of such medically de-categorized staff.

It appears that instructions in respect of such appointments

were issued by the respondents on 7th April, 1983 and 3rd

September, 1983.

3. The matter of employees who do not wait for the

administration to identify alternative job for them but chose to

themselves retire and made a request for such compassionate

appointment was also considered by the Railway Board

resulting in issuance of a supplementary circular on this subject

bearing No.E(NG)II/95/RC-1/94 dated 22nd September, 1995.

The relevant extract thereof provides as follows:-

"3. After careful consideration of the matter Board have decided that in partial modification of Board‟s letter No.E(NG)III/78/RC-1/1 dated 3.9.83, in the case of medically decategorized employee, compassionate appointment of an eligible ward may be considered also in cases where the employee concerned does not wait for the administration to identify an alternative job for him but chooses to retire and makes a request for such appointment."

4. It appears that there were further modifications and

alterations to the policy and even the employees who were

partially medically de-categorized were recognized for the

purposes of similar benefits. In this regard, the petitioner has

placed before this court a copy of a circular dated 14th June,

2006 which was in consonance with the object, spirit and

intendment of the Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995. This Circular inter

alia prescripted as follows:-

"2. Even if the employees to retire voluntarily on his (illegible declared medically decategorized if he, so desires he may be permitted but without extending the benefit of appointment on compassionate ground to ward (para-4 of Board‟s letter of even number dated 18.01.2000 refers).

xxxx

4. Pursuant to the demand raised by staff side the issue has been deliberated upon at length in the full Board Meeting and it has been decided that compassionate ground appointment to the wife/wards/dependants of partially medically decategorized staff who seeks voluntary retirement may be given subject to the following provisions:-

xxxxx

(b) Such an appointment should only be given in case of employees who are declared partially, decategorized at a time when they have at least 5 years or more service left."

5. This circular was followed by further amendments on 2nd

November, 2006 whereby the respondents prescribed the cut-

off date for being eligible for consideration under the

aforenoticed scheme. The respondents in this circular provided

as follows:-

"On some of the Railways instances have come to notice where all such cases including those where the employee has been medically decategorized after 14.06.2006 are also being submitted for General Manager‟s consideration. With regard to the same, it is clarified that para (6) of Board‟s letter dated 14.06.2006 is applicable only in those cases where employee have been medically decategorized between 18.01.2000 and 14.06.2006 and cases where decategorization has occurred after 14.06.2006 may be dealt in the same way as done prior to

issuance of Board letter dated 18.1.2000."

6. A bare reading of the circulars dated 14th June, 2006 and

2nd November, 2006 show that the respondents restricted the

available benefit under the circular dated 14th June, 2006 to

such persons who stood medically de-categorized between 18th

January, 2000 and 14th June, 2006. However, it is important to

note that in case the de-categorization had occurred after 14th

June, 2006, the respondents had clearly and unequivocally

declared that they would be dealt with in the manner as was

prevalent prior to the issuance of the letter dated 18th June,

2000.

7. It appears that the petitioner was medically

de-categorized as unfit and placed in the medical category B-1,

B-II and C-I. As a result of this medical de-categorization, the

petitioner made an application to the respondents which was

captioned as "Request for retirement under PS 13167 on

medical de-categorization". In the body of his application to the

respondents as well, the petitioner requested that he be retired

under circular bearing No.PS 13167 on his medical de-

categorization and that his son Shri Mukesh Kumar may be

provided employment in his place on compassionate grounds.

8. This application of the petitioner was favourably

considered by the respondents. The recommendation on the

petitioner‟s application was communicated to the petitioner by

the Divisional Security Commissioner/RPF of the Northern

Railway/Ambala Cantt. by the letter dated 29th January, 2009,

the relevant extract whereof reads as follows:-

"The above named employee i.e. Sh. Bhushan Kumar HC/RPF/UMB is an uniocular patient having a vision 6/24 in right eye and PL Negative left eye. Hence, he is unfit in medical category Bee-One, Bee-Two and Cee-One. However, he is fit for medical category Cee-two for alternative job.

The said de-categorization HC was called by the committed for providing him alternative job. The HC concerned submitted in writing to DPO/UMB that he is not able to do any job and requested CG appointment to his son in Group D category under PS no.13167."

9. It is undisputed before us that the respondents have

acted upon this representation and relieved the petitioner from

his duties on 31st March, 2009. The petitioner was also paid all

the retirement dues and benefits and he is receiving pension

ever since.

10. Difficulty, however, arose when the respondents sent the

further communication dated 14th July, 2009 to the petitioner

informing him that the case for appointment of the petitioner‟s

son on compassionate grounds could not be considered in view

of the Railway Board‟s circular dated 2nd November, 2006

bearing PS No.13229/06.

11. The petitioner had immediately submitted the written

request to the respondents seeking re-consideration of the

matter and pointed out that he had sought retirement based on

the representation of the respondents to the effect that, in view

of his having more than five years of service still left with him,

his son would be given a job in place of the petitioner if he

takes voluntary retirement. The petitioner clearly informed the

respondents that he had sought voluntary retirement from his

service based on this representation only. The respondents,

however, refused to re-examine the matter resulting in filing of

the present writ petition. It is noteworthy that the petitioner

has made an alternative prayer seeking appointment of his son

on compassionate grounds on group „D‟ post in terms of the

representation and circular of the respondents. In the

alternative, the petitioner has prayed for re-instatement with

entire salary and allowances with effect from 31st March, 2009

treating him to be in continuous service till his actual date of

superannuation on 31st August, 2014.

12. We have heard learned counsel for the parties.

Examination of the circular dated 2 nd November, 2006 relied

upon by the respondents shows that it has prescribed the cut-

off date so far as the medical de-categorization is concerned. It

further restricts the benefits of the circular dated 14 th June,

2006 to such employees who stood medically de-categorized

between 18th January, 2000 and 14th June, 2006. However, the

same circular clearly prescripts that so far as the persons who

were medically de-categorized after 14th June, 2006 would be

governed by the circulars which were prior to the issuance of

the Board letter dated 18th January, 2000. In this regard, the

respondents have placed the aforenoticed circular dated 22nd

September, 1995 before us which clearly prescripts that the

voluntary retirement of an eligible ward may also be

considered where the employee does not wait for the

administration to identify an alternative job for him but opts for

voluntary retirement.

13. In view of the above, even if it were to be held that

respondents were justified in their decision by operation of the

circular dated 2nd November, 2006, we find that the petitioner

was entitled to the consideration of his request for

compassionate appointment of his son in terms of the para 3 of

its circular dated 22nd September, 1995.

14. There is another aspect to this whole matter. The

petitioner had made a composite request to the respondents

when he sought voluntary retirement from his service. The

petitioner had unequivocally captioned his request as being

made under „PS 13167‟. When he requested the respondents

to permit him to voluntary retire, he again reiterated that the

respondents should retire him "under PS 13167" and his son be

provided compassionate ground appointment in the Group „D‟

post.

15. This composite request by the petitioner was considered

by the respondents. The communication dated 29th January,

2009 clearly notes that when the petitioner was called by the

authorities for providing him alternative job, the petitioner had

in writing informed them that he was not able to do any job and

requested for a compassionate ground appointment of his son,

again under PS No.13167. These facts are noticed by the

respondents in the communication dated 29th January, 2009

whereby the Divisional Security Commissioner/RPF has

confirmed that the petitioner "fulfills the condition of PS

13167". The relevant extracts of this communication reads as

follows:-

"The HC fulfill the condition of PS 13167 which are as under:-

1. His son is eligible for Group D post as per his education qualification.

2. The balance service of HC on the date of De-categorization is more than five years.

3. The HC is partially medical de-categorized and seeks voluntary retirement.

The application of voluntary retirement of the above said staff is considered and accepted by the competent authority. The said HC/RPF will be retired from service voluntarily w.e.f. 31.03.2009.

Please ensure that the HC/RPF in question will relived from his duty on 31.03.09. A/N on voluntary retirement."

16. It appears that the appointment on compassionate

ground was to be finally processed by the Railway Board. It

was thereafter that the matter of appointment on

compassionate basis was returned on the aforenoticed

grounds. This has necessitated the present writ petition.

17. In this behalf, learned counsel for the petitioner has

placed before us the decision of the Apex Court on similar facts

in the judgment returned as (2007) 9 SCC 531 in Food

Corporation of India & Anr. vs. Ramkesh Yadav and Anr.

18. Learned counsel for the respondents has sought to draw a

distinction with the case placing reliance on the

pronouncement of the Apex Court in a subsequent judgment

dated 23rd March, 2010 in W.P.(C)No.2627/2010 titled Food

Corporation of India & Anr. vs. Nizamuddin & Anr. It is

urged by learned counsel for the respondents that the

petitioner‟s application did not state that he was making a

prayer for compassionate appointment for his son in lieu of his

voluntary retirement. In our view such a distinction in the facts

of the instant case would be of not much importance inasmuch

as the petitioner had clearly indicated the details of the circular

under which he was making the request and its processing.

19. The petitioner was voluntarely retired from service

pursuant to his aforenoticed application. The respondents thus

acted upon the recommendation of the respondents to the

effect that he fulfills the condition of PS 13167 but refrained

from effecting the compassionate appointment at the final

stage when the offer was required to be made. The petitioner

has been persuaded to proceed on voluntary retirement based

on the clear representation by the respondents that he was

entitled to all benefits under PS 13167 which included the

appointment of his son on the group „D‟ post on compassionate

basis. The respondents have also informed the petitioner that

his son was eligible for such appointment. In view of the

above, there is certainly force in the petitioner‟s contention

that it was implicit in the recommendation by the respondents

and acceptance of his application that he would be entitled to

all benefits available under circular bearing No.PS 13167. The

petitioner had clearly and unequivocally informed the

respondents that he was making an application in terms of the

said circular and seeking to retire on medical grounds linking it

with the compassionate appointment of his son in terms

thereof. His offer had been accepted unconditionally.

20. In the given facts, it cannot be denied that the

respondents have clearly and unequivocally held out to the

petitioner that he was covered under the benefits of circular

dated 14th June, 2006 and processed his application

thereunder. The respondents have also scrutinized the

eligibility of the petitioner‟s son and entitlement to

appointment on group „D‟ post on compassionate basis. We

have also noticed hereinabove the applicability of the circular

dated 22nd September, 1995 which clearly and unequivocally

comes to the rescue of the petitioner. The petitioner would in

any case be entitled to the relief he has sought under this

circular. For all the above reasons, we are of the view that the

petitioner would be entitled to favourable consideration of his

application and petition.

20. Ms. Rekha Palli, learned counsel for the petitioner submits

that the petitioner primarily based his prayer for

compassionate appointment of his son for the reason that the

petitioner has been permitted to retire and has been receiving

retiral benefits for a substantial period. It is contended that in

view of his medical de-categorization, he would be suffering

irreparably in case the order permitting him to retire was

recalled and he was to be reinstated. It is submitted that there

would also be doubt as to the work which the petitioner would

be able to discharge if he was required to go back into duty

with his medical de-categorization.

For all the foregoing reasons, this writ petition deserves

to be favourably considered.

We accordingly direct as follows:-

(i) The respondents shall proceed in the matter and by

consider the appointment of Mukesh Kumar, son of

the petitioner on group „D‟ post in terms of the

recommendation contained in the communication

dated 29th January, 2009 of the respondents and the

circular dated 22nd September, 1995.

(ii) Such consideration shall be completed within a

period of four weeks from today and the order which

is passed shall be positively communicated to the

petitioner forthwith.

(iii) We make it clear that the appointment shall be

effected with effect from the date on which the offer

is made to the petitioner.

This writ petition is allowed in the above terms

Dasti to the parties.

GITA MITTAL, J

J.R. MIDHA, J OCTOBER 26, 2010/aj