Afr vs Union Of India And Others
2022 Latest Caselaw 4506 Ori

                  ORISSA HIGH COURT: CUTTACK


                       W.P.(C) NO. 4358 OF 2021

         In the matter of an application under Articles 226 and
         227 of the Constitution of India.
                               ---------------

AFR Ramanamaa ..... Petitioner

-Versus-

Union of India and others ..... Opp. Parties

For Petitioner : M/s. N.R. Routray, J. Pradhan, T.K. Choudhury and S.K. Mohanty, Advocates.

For Opp. Parties : Mr. P.K. Parhi, Asst. Solicitor General of India

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE G. SATAPATHY

Date of hearing and judgment: 08.09.2022

DR. B.R. SARANGI, J. The Petitioner, who is the daughter of

an Ex-Gangman under PWI, S.E. Railway (now East

Coast Railway), Berhampur, by means of this writ // 2 //

petition, seeks to quash the order dated 11.12.2020

passed in O.A. No. 413 of 2018, by which the Central

Administration Tribunal, Cuttack Bench, Cuttack, has

confirmed the order rejecting the application of the

petitioner for appointment on compassionate ground,

and dismissed the original application.

2. The factual matrix of the case, in brief, is that

the father of the petitioner, who was working as a

Senior Gate Keeper under PWI, S.E. Railway (now East

Coast Railway), Berhampur, died on 13.11.1995. Upon

his death, mother of the petitioner submitted an

application for release of DCRG and appointment on

compassionate ground, but she died on 05.10.1997.

Though the petitioner had two brothers, but one of

them died on 31.07.2004 and other was mentally

disordered. Therefore, on attaining the age of majority

on 13.05.2006, the petitioner filed an application for

appointment on compassionate ground. On

consideration of her application, opposite party no.4,

vide letter dated 10.09.2009, called upon the petitioner // 3 //

to submit required documents and also deputed one

Welfare Inspector to collect necessary documents for

consideration of her application for appointment on

compassionate ground. But no communication was

received for a period of four years. Therefore, the

petitioner submitted another application for

consideration of her appointment on compassionate

ground. In response to the same, opposite party no.4,

by letter dated 02.04.2013, advised the petitioner for

submission of application in prescribed format, along

with required documents. Further, vide letter dated

15.01.2014, opposite party no.4 also advised the

petitioner for submission of certain documents for grant

of family pension, which she complied. But thereafter,

no communication was received.

2.1 Therefore, again the petitioner submitted an

application on 03.10.2016 before opposite party no.4

through proper channel to consider her case for

compassionate appointment sympathetically. But her

application was rejected by opposite party no.4, vide // 4 //

letter dated 20.11.2017, on the ground that the

application was filed seeking appointment on

compassionate ground after more than 20 years. On

receipt of the letter dated 20.11.2017, the petitioner

filed an appeal on 15.02.2018 for reconsideration of her

case for appointment on compassionate ground.

Though such application was forwarded by opposite

party no.4 to opposite party no.1 for consideration, but

the same was rejected, vide letter dated 22.05.2018,

instead of reconsidering the grievance of the petitioner,

on the ground that the same has already been

considered. Aggrieved thereby, the petitioner

approached the tribunal by filing O.A. No. 413 2018

seeking to quash the orders dated 20.11.2017 and

22.05.2018 under Annexure-A/6 and Annexure-A/8

respectively to the original application and further

sought direction to the opposite parties to provide

employment to her on compassionate ground. The

tribunal, after due adjudication, came to a conclusion

that the fact, that petitioner had not submitted any // 5 //

application for appointment on compassionate ground

before the authorities for more than 13 years from the

date of death of the ex-employee, cannot be overlooked,

although the petitioner herself has mentioned that she

attained the age of 18 years on 13.05.2006 and, as

such, there is no reasonable explanation from the side

of the petitioner as to why she waited till submission of

his representation dated 24.12.2008. More so, the

petitioner had not submitted the relevant documents

and also not applied in proper form in spite of

communication received by her from the opposite

parties. But subsequently, the petitioner submitted an

application for employment assistance on 03.10.2016,

i.e., after 21 years of death of her father and after 10

years of her attaining majority. Thereby, there is undue

delay and, as such, there was no penury in the family

and that the petitioner was able to survive for such a

long period. Thereby, for rejection of the application

filed by the petitioner for compassionate appointment,

after consideration of all the relevant facts, no illegality // 6 //

or irregularity is attributable to the opposite parties. By

observing so, the tribunal dismissed the original

application filed by the petitioner. Hence, this writ

petition.

3. Mr. N.R. Routray, learned counsel for the

Petitioner contended that the father of the petitioner

died on 13.11.1995 while he was in service, whereas

her mother and one of the brothers died on 05.10.1997

and 31.07.2004 respectively and, as such, another

brother, who is mentally retarded, left the house whose

whereabouts was not known. It is contended that the

Railway Board issued compassionate scheme to provide

employment on compassionate ground to the

dependents of the railway employees, who died or

permanently crippled in course of duty; the dependents

of the employees who died in harness as a result of

railway accidents while off duty; the dependents of the

employees who died in harness while in service before

retirement or medically incapacitated; and also for other

grounds. As per the original scheme, there was a // 7 //

provision for relaxation of 20 years by the General

Manager, wherein the said power has been delegated to

DRMs/CWMs/HODs to consider compassionate

appointment in favour of widow/widower or any ward of

her/his choice in respect of cases up to 20 years old

from the date of death of the railway employee. It is

contended that father of the petitioner died on

13.11.1995, while in railway service, and according to

the opposite parties, the petitioner submitted the

application under the prescribed format on 03.10.2016,

although she had submitted the application on

24.12.2008 requesting for appointment on

compassionate ground and also handed over the

required documents to the Welfare Inspector. As such,

on either way, the petitioner having submitted the

application for appointment on compassionate ground

within 20 years from the date of death of her father,

denial of such benefit, cannot be sustained in the eye of

law.

// 8 //

3.1 It is further contended that as per RBE No.3

of 2009, even the case of more than 20 years can be

considered by obtaining necessary approval from the

Ministry of Railways, but here the opposite parties have

neither conducted any inquiry nor examined the case of

the petitioner and rejected the same without any

application of mind and without taking into

consideration RBE No.3 of 2009. As such, the

observation so made by the tribunal that there was no

penury in the family of the petitioner and she was able

to survive, by upholding the rejection order passed by

the opposite parties, also cannot be sustained.

3.2 It is further contended that the opposite

parties have neither taken steps for collection of

required documents, except simple pleadings regarding

issuance of letters. Though the petitioner by filing

representation had brought to the notice of the opposite

parties about her family condition, but no prompt steps

were taken by the authorities to resolve the grievance.

Therefore, for the lapses on the part of the opposite // 9 //

parties, the petitioner should not suffer and, as such,

the order so passed by the tribunal on 11.12.2020 may

be quashed and the matter may be remitted back to the

authority for reconsideration.

To substantiate his contention, he has relied

upon the judgment of the apex Court in the case of

State Financial Corporation v. Jagadamba Oil

Mills, AIR 2002 SC 834.

4. Mr. P.K. Parhi, learned Asst. Solicitor General

of India vehemently contended that though the

petitioner's father, who was an employee of the

railways, expired on 13.11.1995, but his widow had

neither applied for employment assistance in her favour

nor in favour of any eligible family members of the

deceased employee. After more than 13 years from the

date of death of the ex-employee, the petitioner claiming

to be the daughter, had submitted the representation

on 24.12.2008 for sanction of family pension and to

provide employment assistance in her favour. In

response to the same, vide letter dated 20.07.2009, the // 10 //

petitioner was called upon to apply for sanction of

family pension and it was informed that no such

request for employment assistance has been received by

the office till date in proper format along with required

documents. In the said letter, the petitioner was also

informed that after the death of ex-employee on

13.11.1995, the mother of the petitioner also expired on

05.10.1997. Thereafter, on receipt of the settlement of

documents executed by one Kumari Sobhamma, the

unmarried daughter, family pension was granted in her

favour from 19.11.1995 till her marriage. After her

marriage, Kumari Dalamma, was also granted family

pension from 02.07.1998. Thereafter, the next eligible

son Bairagi was also granted with family pension

payable up to 25 years of age. Thereafter, there was no

claim with relevant documents received either from the

son of the deceased or from the present petitioner. It is

further contended that though the petitioner advised by

letter dated 10.09.2009 to apply for employment

assistance on compassionate ground in proper format // 11 //

along with required documents, but after lapse of four

years instead of applying for employment assistance in

the prescribed format, which was already supplied to

her, she made an appeal in plain paper application, for

which she was again advised to apply in prescribed

format duly filled in properly enclosing all necessary

documents for taking further course of action, vide

letter dated 02.04.2013, wherein also it was mentioned

that request for employment assistance can be

considered only if her case is genuine and after

submission of requisite documents. But she did not

respond to such letter dated 02.04.2013 and finally the

petitioner submitted an application for employment

assistance on compassionate ground on 03.10.2016

after 21 years of death of her father and 10 years of her

attaining the age of majority, without explaining the

reason of delay.

4.1 It is further contended that as per RBE No.3

of 2009, wherever in individual cases where death of the

ex-employee took place over 20 years ago, prior // 12 //

approval of the Ministry of Railways should be obtained

by forwarding a detailed proposal with specific

justification and personal recommendation of the

General Manager in the prescribed proforma as

circulated vide Board's letter dated 19.04.1988. Though

the case of the petitioner was put up before the

competent authority for orders, whether her case

should be proposed in the light of RBE No.3 of 2009 or

otherwise, but on consideration of the same, the

competent authority found no merit and regretted the

same, which was intimated to the petitioner on

20.11.2017. But the petitioner submitted her grievance

before the General Manager, East Coast Railway and on

verification of genuineness of educational certificate and

other documents, as provided by the petitioner, again

such application was rejected by the authority. Being

aggrieved by the orders of the authority, the petitioner

approached the tribunal and the tribunal after due

adjudication, passed the order impugned by dismissing

the original application filed by the petitioner which is // 13 //

well justified and does not warrant any interference of

this Court.

To substantiate his contention, he has relied

upon the judgment of the apex Court in the cases of

Punjab State Power Corporation Ltd. v. Nirval

Singh, (2019) 6 SCC 774; Central Coal Fields Ltd. v.

Smt. Parden Oraon, Civil Appeal No. 897 of 2021

(arising out of S.L.P.(C) No.10514 of 2020 disposed of

on 09.04.2021); State of Himachal Pradesh v.

Prakash Chand, (2019) 4 SCC 285; and MGB Gramin

Bank v. Chakrawarti Singh, (2014) 13 SCC 583.

5. This Court heard Mr. N.R. Routray, learned

counsel for the Petitioner and Mr. P.K. Parhi, learned

Asst. Solicitor General of India for the Opposite Parties-

Union of India by hybrid mode. Pleadings having been

exchanged between the parties, with the consent of

learned counsel for the parties, this writ petition is

being disposed of finally at the stage of admission.

// 14 //

6. The undisputed fact, as is borne out from the

records, is that the Petitioner's father, who was working

under the Railway, died on 13.11.1995. Though his

widow was granted family pension benefit, but she died

on 05.10.1997. Thereafter, one of the daughters was

allowed to receive family pension. After her marriage,

the same was transmitted to another daughter on

02.07.1998. Thereafter, it was granted to his son till he

attained the age of 25 years. But fact remains, the

petitioner on attaining the age of majority on

13.05.2006, submitted a representation before the

authority on 24.12.2008 claiming for compassionate

appointment, which was not supported by any

document. Therefore, request was made by the opposite

parties to furnish the relevant documents. Even though

such documents were furnished, but no decision was

taken at the level of the opposite parties.

7. It is true that the Government of India,

Ministry of Railways, vide letter dated 06.01.2009,

delegated the power to DRMs/CWMs/HODs to consider // 15 //

for grant of the benefit of compassionate appointment in

favour of widow/widower or any ward of her/his choice

in respect of cases up to 20 years old from the date of

death of railway employee. On 09.12.2011, the Railway

Board in RBE No. 166 of 2011 clarified regarding

appointment on certain categories having no minimum

educational qualification. Even though request was

made to the petitioner to apply afresh on 02.04.2013,

but she applied on 03.10.2016, by that time, 20 years

period has already lapsed. Even by the time she made

the application on 03.10.2016, 10 years from the date

of attaining the age of majority had also been over.

Therefore, the authority rejected the claim of the

petitioner on the ground of delay. Challenging the same,

the petitioner approached the tribunal by filing O.A. No.

413 of 2018, where the petitioner has also filed M.A. No.

49 of 2020 for condonation of delay.

8. Therefore, taking into consideration the

factual matrix of the case at hand, it is evident that

admittedly the petitioner has not approached the // 16 //

authority within the reasonable time for her

appointment on compassionate ground. At first, she

approached the authority by filing representation on

24.12.2008 claiming for family pension, which has

already been paid. But so far as claim with regard to

compassionate appointment is concerned, she

approached the authority only on 03.10.2016 by

providing all the documents and by the time such

application was filed, 20 years period had already been

over. More so, such application has to be routed

through the competent authority and with due approval

of the Ministry of Railway, such appointment can be

considered. So far as RBE No.3 of 2009 is concerned,

even though it gives relaxation of 20 years to make an

application, but that is subject to approval of the

Ministry of Railway. But the application filed by the

petitioner could not get a clearance from the Ministry of

Railway, as because the claim was made after 20 years

and, as such, the petitioner and her family were

satisfied with the family pension, which they were // 17 //

getting and that is why they did not ask for any

compassionate appointment before 03.10.2016.

Therefore, there was a gross delay in claiming such

benefit by the petitioner.

9. It is trite law that compassionate

appointment cannot be claimed as a matter of right. In

catena of decisions, the apex Court has already held

that to mitigate the immediate hardship of the family,

compassionate appointment can be given to one of the

member of the family to save from penury because of

sudden death of bread earner of the family. Admittedly,

after the death of the deceased employee, in order to

save the family from penury, the mother of the

petitioner applied for grant of family pension, which was

paid immediately. But she never claimed for

compassionate appointment for anybody's favour at the

relevant point of time. May it be, since the petitioner

had not attained the age of majority, she submitted a

plain paper representation on 24.12.2008, after

attaining the majority on 13.05.2006, but that itself was // 18 //

relating to grant of family pension benefit. Since the

benefit of compassionate appointment cannot be

applied in a plain paper, the petitioner was informed to

submit the application in prescribed format for giving

compassionate appointment, but the same was only

done on 03.10.2016. Therefore, the application of the

petitioner for compassionate appointment was made

after 21 years of the death of her father and also after

10 years of her attaining the age of majority. As such,

the grounds taken by the petitioner to explain the

undue delay are also not satisfactory.

10. In State Financial Corporation (supra),

while considering the provisions contained in State

Financial Corporation Act vis-à-vis Article 14 of the

Constitution of India, the apex Court held that the

obligation to act fairly on the part of the administrative

authorities was evolved to ensure the rule of law and to

prevent failure of justice. This doctrine is

complementary to the principles of natural justice,

which the quasi-judicial authorities are bound to // 19 //

observe. It is true that the distinction between a quasi-

judicial and the administrative action has become thin.

Even so, the extent of judicial scrutiny/judicial review

in the case of administrative action, cannot be larger

than in the case of quasi judicial action. It is further

held that the power of the Courts while reviewing the

administrative action is not that of an appellate Court.

The ratio of this case, on which reliance has been

placed by learned counsel for the petitioner, has no

assistance to the petitioner, rather it supports the case

of the opposite parties.

11. In Punjab State Power Corporation (supra),

the apex Court held that there is no inherent right to

compassionate appointment, which has to be in

accordance with existing policy since objective is to

ameliorate condition of family at relevant stage of time

and it is deviation from rule of merit. Applying the

same, the apex Court held that the respondent was not

entitled to compassionate appointment since there was

delay of 7 years in approaching the Court and, thus, the // 20 //

very objective of providing immediate amelioration to

family was extinguished.

12. In Central Coalfields Limited (supra), the

apex Court held that the whole object of granting

compassionate appointment is to enable the family to

tide over the sudden crisis which arises due to the

death of the sole breadwinner. The mere death of an

employee in harness does not entitle his family to such

source of livelihood. The authority concerned has to

examine the financial condition of the family of the

deceased, and it is only if it is satisfied that but for the

provision of employment, the family will not be able to

meet the crisis that the job is offered to the eligible

member of the family. The apex Court further held that

the application for compassionate appointment of the

son was filed by the opposite party in the year 2013

which is more than 10 years after the respondent's-

husband had gone missing. As the object of

compassionate appointment is for providing immediate

succor to the family of a deceased employee, the // 21 //

respondent's-son is not entitled for compassionate

appointment after the passage of a long period of time

since his father has gone missing.

Similar view has also been taken by the apex

Court in Umesh Kumar Nagpal v. State of Haryana,

(1994) 4 SCC 138.

13. In State of Himachal Pradesh (supra), the

apex Court held that direction to consider the

application for compassionate appointment of

dependants of deceased employee de hors the policy, is

impermissible.

14. In MGB Gramin Bank (supra), the apex

Court held that compassionate appointment claimed in

the nature of entitlement for and conditions emphasized

and reiterated that it is not a vested right but only an

ameliorating relief for financial constraints on bereaved

family.

15. The cumulative effect of law laid down by the

apex Court clearly indicates that there is no inherent // 22 //

right to compassionate appointment, which has to be in

accordance with the existing policy, as the object is to

ameliorate the condition of the family at the relevant

point of time. Therefore, the claim made by the

petitioner after 20 years of death of her father to get

compassionate appointment, cannot have any

justification, because the very object of providing

immediate amelioration to family had extinguished.

Needless to say, the father of the petitioner had expired

on 13.11.1995 and the petitioner though attained the

majority on 13.05.2006, but submitted the application

for compassionate appointment in the prescribed format

enclosing required documents only on 03.10.2016.

Meaning thereby, after 20 years of death of her father

and after 10 years of attaining the majority, the

petitioner applied for compassionate appointment by

providing all documents. Therefore, there is gross delay

in claiming such benefit and, thereby, the authority is

well justified in rejecting her claim. Even though RBE

No.3 of 2009 provides 20 years' time within which one // 23 //

can make application, but the same has to be routed

through the Ministry of Railway. The same having not

been done in the instant case, the rejection of the claim

of the petitioner is well justified. As such, the tribunal

has not committed any error apparent on the face of

record in confirming the order passed by the authority

rejecting the claim of the petitioner for compassionate

appointment and in dismissing the original application,

so as to warrant interference with the same.

16. In view of the aforesaid facts and law, as

discussed above, this Court does not find any merit in

the writ petition, which is accordingly dismissed.

However, there shall be no order as to costa.

..............................

                                           DR. B.R. SARANGI,
                                                JUDGE

G. SATAPATHY, J.     I agree.

                                           ..............................
                                             G. SATAPATHY,
                                                JUDGE


          Orissa High Court, Cuttack
          The 8th September, 2022, Ashok/GDS