Bhawani Prasad Sonkar vs Union Of India & Ors

BHAWANI PRASAD SONKAR -- APPELLANT

VERSUS

UNION OF INDIA & ORS. -- RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

1. This appeal, by grant of special leave, is directed against the judgment

dated 1st September, 2003 delivered by the High Court of Judicature at

Allahabad at Lucknow, whereby the writ petition filed by the appellant

herein, seeking compassionate appointment, has been dismissed on the

ground that he did not fulfil the conditions envisaged in the Railway

Board Circular dated 29th November, 2001.

2. Appellant's father, Mr. Prahladji Sonkar, was posted as a Guard

Mail/Express, North Eastern Railway at the Lucknow Junction.

Respondent No. 2 viz. the Senior Divisional Karmik Adhikari, North

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Eastern Railway (N.E.R.), Lucknow directed the appellant's father to

appear before the Medical Board for a medical examination.

Accordingly, appellant's father appeared before the Medical Board and

was declared medically unfit in A2, A3, B1 and B2 categories vide

certificate dated 6th March, 1998. However, he was found fit in C1 and

C2 categories and was directed to appear for another medical

examination after six months.

3. Accordingly, appellant's father again appeared for a medical examination

and vide certificate dated 13th July, 1999, he was declared medically unfit

as de-categorized employee. Nevertheless, he was found fit in category

B1 and below. Thereafter, on 9th August, 1999, appellant's father

appeared before the Standing Committee which decided to retire him

without offering him any alternate employment, as stipulated in the

service rules. Ultimately, appellant's father was retired from service vide

retirement order dated 30th August, 1999 issued by respondent No. 3 viz.

Divisional Railways Manager (Karmik), Lucknow, which stated that:

"Shri Prahlad Ji Sonkar, Guard Mail/Express in the pay scale of

(5500-9000) at Lucknow Junction who having been declared as

decategorised employee has been recommended by the standing

committee for retirement, is retired with immediate effect."

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4. At this juncture, it would be relevant to note that an appointment on

compassionate ground in the Railways was governed by Railway Board

Circular dated 22nd September, 1995 which provided that:

"1. In terms of the instructions contained in para I(iv) of

Board's letter No. E(NG)III/78/RC-1/1 dated 07.04.1983 and

03.09.1983, appointment on compassionate grounds is

permissible where a Railway employee becomes medically

decategorised for the job he is holding and no alternative job

with the same employee is but it is not accepted by the

employee and he chooses to retire from service.

2. The question whether appointment on compassionate

ground can be considered in the case of a medically

decategorised employee who does not wait for the

Administration to identify an alternative job for him but

chooses to retire under consideration of the Board.

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 03.09.1983, in the case of medically

decategorised 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 (sic) such appointment."

5. It is also pertinent to mention here that on 29th April, 1999, the Railway

Board issued a circular stating, inter alia, that in light of the mandate of

the Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995, employees who become incapacitated

from holding the post they were currently holding, but found eligible for

retention in service in posts corresponding to lower medical category,

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shall be offered alternative employment in the posts for which they are

found suitable.

6. Appellant's father moved an application dated 1st September, 1999,

before respondent No. 2 requesting that his son be given compassionate

appointment as a Class IV employee. Since there was no response to the

said request, the father of the appellant moved another application, dated

30th December, 1999, before respondent No. 3. On 18th January, 2000,

the Railway Board issued a letter stating that when an employee is

declared as medically unfit to perform the work which he was performing

but is found to be fit to perform work in a lower category, any request for

giving compassionate employment to such employee's ward would not

be considered if the employee opts for voluntary retirement after being

de-categorized.

7. Thereafter, on 29th November, 2001, the General Manager (Personnel),

Gorakhpur issued a letter stating that in case of employees who opted for

voluntary retirement after 29th April, 1999, the cases of wards of only

totally incapacitated employees would be considered for appointment on

compassionate grounds. In pursuance of the same, respondent No. 3

issued a letter dated 15th February, 2002 to appellant's father stating that

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the application for appointment of his son on compassionate ground was

not found fit for consideration by the competent authority.

8. Being aggrieved, the appellant preferred an Original Application before

the Central Administrative Tribunal, Lucknow (for short "the Tribunal").

9. Vide order dated 31st December, 2002, the Tribunal dismissed the

Original Application, observing thus:

"I have considered the facts of the case and submissions made

on behalf of the parties, and I am of the view that the O.A.

deserves to be dismissed on the basis of the circular letter dated

29.11.2001 which had the effect of superseding the earlier

instructions on the subject. Since, the applicant's father was not

totally incapacitated and retired on 30.8.99, the claim of the

applicant for compassionate appointment has to be considered

in the light of the instructions of the Railway Board letter dated

29.11.2001 according to which he is not eligible for

compassionate appointment."

10.Still being aggrieved, the appellant filed a writ petition before the High

Court. As afore-mentioned, the High Court has, vide the impugned

judgment, dismissed the petition, stating that:

"The Tribunal has recorded clear-cut finding to the effect that

the petitioner was not eligible for any compassionate

appointment which (sic) could be offered as envisaged in the

policy decision of the Railway Board as indicated in the

Circular dated 29.11.2001, were not satisfied.

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

Taking into consideration the facts and circumstances of the

case as brought on record in their totality no justifiable ground

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for any interference by this Court can be said to have been

made out while exercising the extraordinary jurisdiction under

Article 226 of the Constitution."

11. Meanwhile, the appellant also preferred a review application before the

Tribunal for reviewing its earlier order dated 31st December, 2002. Vide

order dated 5th March, 2004, the said application was dismissed by the

Tribunal on the ground that the same was barred by limitation.

12.Hence, the present appeal.

13. Mr. D.P. Chaturvedi, learned counsel appearing on behalf of the

appellant, while assailing the impugned judgment, strenuously urged that

having retired appellant's father without offering him a suitable

alternative job, despite the fact that he was found medically fit in

category B1, the respondents were obliged to appoint the appellant in

terms of instructions dated 7th April, 1983 and 3rd September, 1983,

which were reiterated in Circular dated 22nd September, 1995.

14. Per contra, Mr. Ashok Bhan, learned counsel appearing on behalf of the

respondents, contended that appellant's father, having opted for voluntary

retirement in terms of the Railway Board's letter dated 18th January,

2000, could not seek appointment of his son on compassionate ground.

6 Learned counsel urged that the appellant has not brought any material on

record to substantiate his plea that his father was forced to retire.

15.Now, it is well settled that compassionate employment is given solely on

humanitarian grounds with the sole object to provide immediate relief to

the employee's family to tide over the sudden financial crisis and cannot

be claimed as a matter of right. Appointment based solely on descent is

inimical to our Constitutional scheme, and ordinarily public employment

must be strictly on the basis of open invitation of applications and

comparative merit, in consonance with Articles 14 and 16 of the

Constitution of India. No other mode of appointment is permissible.

Nevertheless, the concept of compassionate appointment has been

recognized as an exception to the general rule, carved out in the interest

of justice, in certain exigencies, by way of a policy of an employer,

which partakes the character of the service rules. That being so, it needs

little emphasis that the scheme or the policy, as the case may be, is

binding both on the employer and the employee. Being an exception, the

scheme has to be strictly construed and confined only to the purpose it

seeks to achieve. We do not propose to burden this judgment with

reference to a long line of decisions of this Court on the point. However,

in order to recapitulate the factors to be taken into consideration while

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examining the claim for appointment on compassionate ground, we may

refer to a few decisions.

16. In Umesh Kumar Nagpal Vs. State of Haryana & Ors.1, while

emphasising that a compassionate appointment cannot be claimed as a

matter of course or in posts above Class III and IV, this Court had

observed that:

"The whole object of granting compassionate employment is

thus to enable the family to tide over the sudden crisis. The

object is not to give a member of such family a post much less a

post for post held by the deceased. What is further, mere death

of an employee in harness does not entitle his family to such

source of livelihood. The Government or the public 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 a job is to be offered to the eligible member of the

family. The posts in Classes III and IV are the lowest posts in

non-manual and manual categories and hence they alone can be

offered on compassionate grounds, the object being to relieve

the family, of the financial destitution and to help it get over the

emergency. The provision of employment in such lowest posts

by making an exception to the rule is justifiable and valid since

it is not discriminatory. The favourable treatment given to such

dependant of the deceased employee in such posts has a rational

nexus with the object sought to be achieved, viz., relief against

destitution. No other posts are expected or required to be given

by the public authorities for the purpose. It must be

remembered in this connection that as against the destitute

family of the deceased there are millions of other families

which are equally, if not more destitute. The exception to the

rule made in favour of the family of the deceased employee is

in consideration of the services rendered by him and the

1 (1994) 4 SCC 138

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legitimate expectations, and the change in the status and affairs,

of the family engendered by the erstwhile employment which

are suddenly upturned."

17. Similarly, in Steel Authority of India Limited Vs. Madhusudan Das &

Ors.2, this Court has observed that:

"This Court in a large number of decisions has held that the

appointment on compassionate ground cannot be claimed as a

matter of right. It must be provided for in the rules. The criteria

laid down therefor viz. that the death of the sole bread earner of

the family, must be established. It is meant to provide for a

minimum relief. When such contentions are raised, the

constitutional philosophy of equality behind making such a

scheme be taken into consideration. Articles 14 and 16 of the

Constitution of India mandate that all eligible candidates should

be considered for appointment in the posts which have fallen

vacant. Appointment on compassionate ground offered to a

dependant of a deceased employee is an exception to the said

rule. It is a concession, not a right." (See also: General

Manager, State Bank of India & Ors. Vs. Anju Jain3.)

18. In V. Sivamurthy Vs. State of Andhra Pradesh & Ors.4, this Court while

observing that although appointment in public service should be made

strictly on the basis of open invitation of applications and comparative

merit, having regard to Articles 14 and 16 of the Constitution, yet

appointments on compassionate grounds are well recognized exception

to the general rule, carved out in the interest of justice to meet certain

2 (2008) 15 SCC 560

3 (2008) 8 SCC 475

4 (2008) 13 SCC 730

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contingencies, highlighted the following two well-recognised

contingencies as exceptions to the general rule :

"(i) appointment on compassionate grounds to meet the sudden

crisis occurring in a family on account of the death of the

breadwinner while in service.

(ii) appointment on compassionate ground to meet the crisis in

a family on account of medical invalidation of the

breadwinner."

19.Thus, while considering a claim for employment on compassionate

ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the

absence of rules or regulations issued by the

Government or a public authority. The request is to be

considered strictly in accordance with the governing

scheme, and no discretion as such is left with any

authority to make compassionate appointment dehors

the scheme.

(ii) An application for compassionate employment must

be preferred without undue delay and has to be

considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet

the sudden crisis occurring in the family on account of

the death or medical invalidation of the bread winner

while in service. Therefore, compassionate

employment cannot be granted as a matter of course

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by way of largesse irrespective of the financial

condition of the deceased/incapacitated employee's

family at the time of his death or incapacity, as the

case may be.

(iv) Compassionate employment is permissible only to

one of the dependants of the deceased/incapacitated

employee, viz. parents, spouse, son or daughter and

not to all relatives, and such appointments should be

only to the lowest category that is Class III and IV

posts.

20. Tested on the touchstone of these broad guidelines governing

appointment on compassionate ground, we are of the opinion that the

appellant has made out a case for such appointment. It is manifest that in

terms of circular dated 29th November, 2001 only those employees, who

have been totally incapacitated from performing any service after 29th

April, 1999 were entitled to seek compassionate employment for their

wards. In the instant case, appellant's father retired on 30th August, 1999

i.e. after 29th April, 1999, but was not offered alternative employment in

terms of the Circular dated 29th April, 1999.

21. The circular/letter dated 29th November, 2001, on which reliance was

placed while rejecting appellant's claim has to be understood in its

correct perspective. Evidently, it seeks to limit the benefit of

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compassionate employment to only those incapacitated employees who

had been retired after 29th April, 1999, as in case of employees who were

found fit for performing services in a lower category, Circular dated 29th

April, 1999 would be applicable, and the Railways was bound to offer

alternative employment to such employees. It flows therefrom that after

29th April 1999, those employees who did not accept the alternative

employment, and opted for voluntary retirement could not be given the

benefit of compassionate employment for their wards.

22. In the instant case, the respondents have not placed any material on

record to establish that the appellant's father was offered any alternative

employment in terms of Circular dated 29th April, 1999. On the contrary,

it appears that the Standing Committee recommended his retirement.

Having denied appellant's father the benefit of Circular dated 29th April

1999, the respondents cannot claim that Circular dated 29th November,

2001 was applicable to appellant's father, disentitling him from seeking

employment on compassionate ground for his son as he was not totally

incapacitated and had sought voluntary retirement. It is clear from the

retirement order dated 30th August, 1999 that the appellant's father was

retired from service pursuant to the recommendation of the Standing

Committee.

1 23. In light of the fact that Circular dated 29th November, 2001 was not

applicable in the case of appellant's father, inasmuch as the benefit of the

29th April, 1999 Circular was not extended to him, and he was made to

retire from service, we are of the opinion that the earlier circular dated

22nd September, 1995 is applicable in the instant case. Consequently, the

appellant would be entitled to employment on compassionate ground as

the said Circular contemplates compassionate employment for the wards

of those employees who have been medically de-categorized, and have

retired, without being offered an alternative suitable job. We are unable

to accept the plea of the respondents that on being de-categorized,

appellant's father had opted for voluntary retirement.

24. In light of the foregoing discussion, the appeal is allowed; the impugned

judgment is set aside and it is directed that the appellant shall be granted

employment on compassionate ground within three months of the receipt

of copy of this judgment, subject to his complying with other eligibility

conditions, as applicable on 1st September, 1999. However, for all intents

and purposes, he shall be deemed to be in service from the date of actual

joining.

25.In the facts and circumstances of the case, there shall be no order as to

costs.

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(D.K. JAIN, J.)

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(H.L. DATTU, J.)

NEW DELHI;

MARCH 11, 2011.

ARS

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