Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5101 OF 2005
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
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dated 1 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
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Board Circular dated 29 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
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certificate dated 6 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
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and vide certificate dated 13 July, 1999, he was declared medically unfit
as de-categorized employee. Nevertheless, he was found fit in category
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B1 and below. Thereafter, on 9 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
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retirement order dated 30 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
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Circular dated 22 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.”
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5. It is also pertinent to mention here that on 29 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.
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6. Appellant’s father moved an application dated 1 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
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30 December, 1999, before respondent No. 3. On 18 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.
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7. Thereafter, on 29 November, 2001, the General Manager (Personnel),
Gorakhpur issued a letter stating that in case of employees who opted for
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voluntary retirement after 29 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
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issued a letter dated 15 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”).
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9. Vide order dated 31 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.
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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
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Tribunal for reviewing its earlier order dated 31 December, 2002. Vide
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order dated 5 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
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terms of instructions dated 7 April, 1983 and 3 September, 1983,
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which were reiterated in Circular dated 22 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
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retirement in terms of the Railway Board’s letter dated 18 January,
2000, could not seek appointment of his son on compassionate ground.
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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.
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16. In Umesh Kumar Nagpal Vs. State of Haryana & Ors. , 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
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(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 &
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Ors. , 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
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Manager, State Bank of India & Ors. Vs. Anju Jain .)
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18.
In V. Sivamurthy Vs. State of Andhra Pradesh & Ors. , 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
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(2008) 15 SCC 560
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(2008) 8 SCC 475
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(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
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terms of circular dated 29 November, 2001 only those employees, who
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have been totally incapacitated from performing any service after 29
April, 1999 were entitled to seek compassionate employment for their
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wards. In the instant case, appellant’s father retired on 30 August, 1999
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i.e. after 29 April, 1999, but was not offered alternative employment in
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terms of the Circular dated 29 April, 1999.
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21. The circular/letter dated 29 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
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had been retired after 29 April, 1999, as in case of employees who were
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found fit for performing services in a lower category, Circular dated 29
April, 1999 would be applicable, and the Railways was bound to offer
alternative employment to such employees. It flows therefrom that after
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29 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
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employment in terms of Circular dated 29 April, 1999. On the contrary,
it appears that the Standing Committee recommended his retirement.
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Having denied appellant’s father the benefit of Circular dated 29 April
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1999, the respondents cannot claim that Circular dated 29 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
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retirement order dated 30 August, 1999 that the appellant’s father was
retired from service pursuant to the recommendation of the Standing
Committee.
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23.
In light of the fact that Circular dated 29 November, 2001 was not
applicable in the case of appellant’s father, inasmuch as the benefit of the
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29 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
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22 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
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conditions, as applicable on 1 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.)
.…………………………………….
(H.L. DATTU, J.)
NEW DELHI;
MARCH 11, 2011.
ARS
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