Union Of India vs Deva Ram
2022 Latest Caselaw 8492 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Civil Writ Petition No. 5220/2020

1.      Union Of India, Through The General Manager, North
        Western Railway, Near Jawahar Circle, Jagatpura, Jaipur.
2.      The Divisional Railway Manager, Northern Western Zone,
        North Western Railway, Jodhpur Division, Jodhpur
3.      The Senior Divisional Personnel Officer, North Western
        Railway, Jodhpur, Division Jodhpur.
                                                                   ----Petitioners
                                    Versus
        Deva Ram S/o Sh. Ratna Ram, Resident Of Village And
        Post Chandaroon, District Nagaur, Ward Of Late Sh. Ratna
        Ram Gang Man Under Pw1 North Western Railway Jalore.


                                                                  ----Respondent


For Petitioner(s)         :     Mr. Vijay Kumar Vyas
For Respondent(s)         :     Mr. S.K. Malik



              HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                              JUDGMENT

Judgment pronounced on                  :::              30/06/2022

Judgment reserved on                    :::              24/05/2022


BY THE COURT : (PER HON'BLE MEHTA, J.)

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

(2 of 11) [CW-5220/2020]

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.

Brief facts relevant and essential for disposal of the writ

petition are noted hereinbelow:-

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

(3 of 11) [CW-5220/2020]

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.

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

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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.

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

(5 of 11) [CW-5220/2020]

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.

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.

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

(6 of 11) [CW-5220/2020]

which the employer accepted while dealing with the claim for

terminal benefits and thus, the legality of the adoption deed

cannot be questioned now.

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.

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 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

(7 of 11) [CW-5220/2020]

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. Pushpendra Kumar and Others reported in 1998(5) SCC 192 dealing with such a situation observed :

                                                (8 of 11)                       [CW-5220/2020]


      "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."

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:-

(9 of 11) [CW-5220/2020]

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.

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)

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

(10 of 11) [CW-5220/2020]

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. 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.

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

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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.

The writ petition is allowed in these terms.

                                   (VINOD KUMAR BHARWANI),J                                    (SANDEEP MEHTA),J


                                   /Sudhir Asopa/Devesh/-









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