Maharani Devi & Anr vs Union Of India & Ors

Maharani Devi & Anr. .... Appellants

Versus

Union of India & Ors. .... Respondents

JUDGMENT

V.S. SIRPURKAR, J.

1. Leave granted.

2. Appellant No.1 is the widow of one Shri Kailash Singh who was working

as Storeman under the Eastern Railways, Bihar while the appellant No.2 is his

nephew. The said Kailash Singh expired on 03.12.1995. He was a permanent

employee of the Eastern Railways, now the East Central Railways. He died

issueless. As per the claim of the appellants, appellant No.1 who is a helpless

widow, after the death of her husband, the application came to be submitted on

05.12.1995 for compassionate appointment before the Divisional Railway

Manager, Danapur (second respondent) in favour of the second appellant since

the late Kailash Singh died issueless and in case of the employee dying

issueless his near relative could get the compassionate appointment on the basis

of a circular No. E(NG)111/88/RC-111 dated 16.05.1991; RBE 102/91.

3. Unfortunately for her, on 13.12.1995, the Railway Board, by its order, took

a policy decision and introduced an amendment to the above mentioned Circular

dated 16.05.1991 deleting the provision of providing compassionate appointment 2

to the near relative. This decision was circulated by a Circular dated 22.12.1995.

It must be added here that the Circular was not retrospective.

4. Since the application made by her was not responded to, another

representation was made on 29.02.1996 for compassionate appointment for the

second appellant. By order dated 19.03.1997, this application came to be

rejected without giving any reasons. One more representation was made

through Shri Sushil Kumar Modi, Leader of the Opposition in Bihar Assembly by

his letter No. 1424 dated 06.10.1999 addressed to the Minister of State for

Railways. However, even he was informed that there was no provision to employ

near relative on compassionate ground and accordingly the competent officer

had rejected her representation. The appellants, therefore, filed an original

application before the Central Administrative Tribunal, Patna Bench, Patna

(hereinafter called `the Tribunal'). It was pointed out that there was a

communication by the Railway Board bearing No. E(NG) 11/88-RC-1/1 dated

12.02.1990 which provided that if an employee dies in harness leaving a widow

without children, the appointment of a near relative could be considered in case

of hardship and on merits of each case. Relying on this circular the claim of the

appellants was pressed. It was pointed that this circular was not considered by

the authorities. It was then pointed out that the further circular dated 16.05.1991

referred to earlier in this judgment was also not considered. It was claimed that

the subsequent order of the Railway Board dated 13.12.1995 holding the

provision of appointment of near relative on compassionate ground was not

applicable to the present case as it was not retrospective in effect. In short, it

was claimed that since the husband of appellant No.1 died on 03.12.1995 during

the previous order of the Railway Board when appointment of a near relative was 3

permitted there was no reason to deny the appointment in favour of the second

appellant. The respondent Railways pointed out that the decision to delete the

provision of appointment of a near relative which was taken on 13.12.1995 was

based on the basis of Office Memorandum of the Ministry of Personnel, Public

Grievances and Pensions (Department of Personnel and Training) dated

09.12.1993 and, therefore, the subsequent death of the husband of appellant

No.1 on 03.12.1995 was of no consequence. It was further pointed out that the

Department of Personnel Training, Government of India was the nodal

Department and all the matters relating to Government service were to be

implemented through the same agency. Reliance was also put on the judgment

of the Supreme Court in Auditor General of India v. G. Ananta Rajeswara Rao

1994 ( 1 ) SCC 192 and, therefore, the appellant was not entitled to any relief.

5. The Tribunal took the view that whatever be the case, the respondent had

not passed a speaking order nor had it considered the merits of the matter. The

Tribunal, therefore, directed the respondents to re-consider the representation

and the aspect of dependency of the appellant No. 1 on appellant No.2. They

were further directed to consider the relevancy of the order of the Railway Board

dated 13.12.1995 as the deceased employee had died in harness prior to the

date of issue of that order of the Railway Board and further whether the order

could be applied retrospectively. Time limit of four months was also set up by the

Tribunal for disposal of the representation. However, on 12.08.2002 the

respondent again rejected the claim of the petitioner. This time in their order the

respondents pointed that the appellant No.1 had received the family pension of

Rs. 1,04,658/- on account of death of her husband. It was held that the provision

of extending the compassionate appointment was only to help the family left 4

behind by the employee and further there was no provision for compassionate

appointment to the near relative under the order dated 13.12.1995. It was

reiterated that in view of the handsome amount that she had received after the

death of her husband the appellant No.1 was not entitled for the appointment of

the second appellant. The appellants again approached the Tribunal, Patna.

Two questions were formulated by the Tribunal. They were:- whether the

request of the appellant No. 1 for appointment of appellant No.2 was required to

be considered on the basis of the Notification dated 16.05.1991 or in the light of

the order dated 13.12.1995 the second question was as to whether the

respondent authorities were right in rejecting the request of the appellant on the

ground that the appellant No.1 had received over a lakh rupees as service dues

of the deceased husband and she was also getting reasonable pension and

whether it can be said that she was not suffering from financial or other hardship.

6. On the first question, the Tribunal took the view that provision of

compassionate appointment was a mere social welfare measure and the object

of the same was not simply to give employment to a near relative. On this

question, the Tribunal considered the Full Bench decision of Patna High Court in

Project Uccha Vidyalaya Shikshak Sangh v. State reported in 2001 (1) PLJR

287. The Tribunal held that the decision did not apply to the facts of the case of

the appellants. The Tribunal, however, expressed that the Office Circular on

which the appellant had relied and which was in force on the date of death of

Kailash Singh was not available at the time of submission of application on which

date the amended circular was in force. The Tribunal did not accept the case that

the first representation was made on 05.12.1995. The Tribunal treated the

second representation dated 29.02.1996 to be the first representation and further 5

came to hold that since on that date the amended circular dated 13.12.1995 was

in force only the amended Circular would be applicable to the facts of the case

and as such the appellants would not be entitled to any relief. In short, the

Tribunal held that the relevant date would not be the date of the death of the

employee but the date on which the representation was made.

7. On the first question, therefore, the Tribunal found the case against the

appellants. On the second question, however, the Tribunal relying on Pankaj

Kumar V. Union of India decided on 24.08.2000 held that the employment on

compassionate grounds could not be denied on the ground of financial service

benefits received by the widow and children of the deceased Government were

sufficient to meet their needs. In support of this proposition, the Tribunal relied

on the decision of Balbir Kaur & Ors. v. Steel Authority of India AIR 2000 SC

1906.

8. The appellants filed a writ petition before the Patna High Court. However,

the same came to be dismissed in limine and that is how the appellants are

before us in this appeal.

9. On the basis of the contentions raised by the learned counsel for the

appellants and the learned senior counsel Shri Harish Chandra appearing on

behalf of the respondent which falls for our consideration is as to which is the

relevant dated for deciding the claim of the appellants whether it is the date on

which the husband of the appellant No.1 died i.e, 03.12.1995 or whether it is the

date on which the representation was made i.e. 22.12.1995 when the amended

Circular was enforced depriving any relative from getting any appointment on

compassionate ground.

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10. It was urged that the Tribunal was not right in holding that the first

representation was not made on 05.12.1995 but was made later on 29.02.1996.

We will not go into that question since it amounts to a question of fact. However,

the basic question still remains as to which is the relevant date as to the right for

being considered for compassionate appointment accrues on the date of the

death of the concerned employee or it is to be considered on the date when the

application for compassionate appointment is made.

11. We do not find any discussion about this in the High Court order and

indeed there could not have been none since the writ petition was dismissed in

limine.

12. The learned counsel for the appellants relied on the judgment of this Court

reported in Chairman Railway Board & Ors. v. C.R. Rangadhamaiah & Ors.

1997 (6) SCC 623 which is a Constitution Bench decision. This was a case

wherein the validity of the same Notification issued by the Railways under Article

309 amending Rule 2544 of Indian Railway Establishment Board with

retrospective effect was under consideration. By that amendment the pension

conditions of the employees who had already retired on the date of Notification

was adversely affected. The Court held that in the circumstances, the rules

could not have been amended retrospectively affecting the rights of the

employees. The Court, however, held that on the date when the said

retrospective amendments were introduced Article 19(1)(f) and Article 31(1)

were available in the Constitution of India. The Court held that, therefore, the

right of property of the petitioner was breached by the impugned retrospective

circulars. Further in cutting down the pension by bringing in the amendments to 7

the provisions retrospectively would be invalid, breaching Articles 14 and 16.

Relying heavily on this judgment the learned counsel suggests that at least in the

aforementioned case, the amendments were retrospective while in the present

case they were not retrospective and, therefore, the amended Circular dated

13.12.1995 would not be applicable. The further argument is that under any

circumstance the right for being considered for compassionate appointment had

accrued on the date of death of the employee that being the only relevant date.

According to the learned counsel the date on which the representation was made

was irrelevant.

13. As against this the learned senior counsel Shri Harish Chandra urged that

the most relevant date would only be when the representation was made

because the Railway Board had to consider as to whether the appellants were

indigent on the date when the application was made.

14. On this crucial question, however, there is the High Court has not

expressed any opinion. It has merely approved of the judgment of the Tribunal.

Learned senior counsel in support of his argument relied on the judgment in

State Bank of India & Ors. v. Jaspal Kaur reported in 2007 (9) SCC 571.

However, we do not find any similarity in the situation appearing in this case and

the one decided by this Court. The reported decision only considered the

question as to which scheme pertaining to compassionate appointment should

be preferred - whether it should be the scheme prevailing at the time when the

application for compassionate appointment was filed or the one which was

available on the date of decision of the Court.

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15. Such question is not for our consideration in the present matter. That

decision is, therefore, of no use for learned counsel for the respondents.

However, in our view the question posed by us as to what would be the relevant

date for consideration, whether it would be the date of death of employee or

whether it would be the date of making the representation? That has not been

considered by the High Court. We, therefore, remand this matter to the High

Court with a request to the High Court to decide the same. We request the High

Court to dispose of the matter within six months of the writ reaching the High

Court as the matter pertains to the rights of a poor widow. The appeal is allowed

in the terms stated by us with no orders as to the costs.

...........................J. [ Tarun Chatterjee ]

.........................J. [ V.S. Sirpurkar ] New Delhi;

May 15, 2009.

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Digital Performa

Case No. : CIVIL APPEAL NO. OF 2009 (Arising out of SLP (C) No. 16263 of 2006)

Date of Decision : 15.05.2009

Cause Title : Maharani Devi & Anr. Versus

Union of India & Ors.

Coram : Hon'ble Mr. Justice Tarun Chatterjee Hon'ble Mr. Justice V.S. Sirpurkar

C.A.V. On : 30.4.2009

Judgment delivered by : Hon'ble Mr. Justice V.S. Sirpurkar

Nature of Judgment : Reportable