General Manager, Southern Railway & others v. Nishad C.H., OP (CAT) No.227 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** ## **OP (CAT).No.227 of 2018** **AGAINST THE ORDER/JUDGMENT IN OA 180/00657/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** - **1 GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600 003.** - **2 SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, DIVISIONAL OFIFCE, THIRUVANANTHAPURAM-695 014.** - **3 DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, DIVISIONAL OFFICE, THIRUVANANTHAPURAM-695 014.** **BY ADV. SRI.B.RAJESH, SC, RAILWAYS** ## **RESPONDENT/APPLICANT:** **NISHAD C.H. S/O LATE C.HAMSA, CHATHENKOTTIL (HOUSE), MULLURKARA P.O., KANNAMPARA, WADAKKANCHERY, THRISSUR DISTRICT-680 583.** **BY ADV. SRI.T.RAJASEKHARAN NAIR** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 19.07.2019, THE COURT ON 25.07.2019 PASSED THE FOLLOWING:** _OP(CAT) No.227/2018_ 2 ## **JUDGMENT** ## Ashok Menon, J. Aggrieved by the order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.180/00657/2017 dated 10.09.2018, the Southern Railway, represented by its officers, have preferred this petition. 2. Late C.Hamsa, while working as Senior Trackman in the Southern Railway at Chalakkudy, died in harness, survived by his wife, two sons and a daughter. It is alleged that the entire family was depending on the sole income of the deceased. The applicant had not yet completed his 10[th] Standard. He was unemployed and unmarried. He applied for a post in the Southern Railway under the scheme for compassionate employment. The claim was turned down by the Railways stating “no exceptional circumstances are made out that would justify employing the candidate, who does not meet even the qualifying standards”. Thereafter, the applicant cleared the 10[th] Standard examination and applied afresh. However, that application too was rejected _OP(CAT) No.227/2018_ 3 stating that the purpose of compassionate appointment is to tide over the debilitating circumstances of the family of the deceased employee in order to prevent them from falling into vagrancy. Since such a situation did not arise in the instant case, the Railways refused employment to the applicant. 3. Aggrieved by the rejection of his application, the applicant approached the Tribunal. On considering the facts and situations, the Tribunal allowed the application relying on the decision of the Honourable Supreme Court in _**Govind Prakash Verma v. Life Insurance**_ ## _**Corporation of India & others, (2005) 10 SCC 289**_ . 4. The Railways seek interference of this Court. The contention of the petitioners is that the widow of the deceased is getting an enhanced family pension of Rs.16,179/- which she will continue to get upto 15.05.2024, and thereafter, she will receive a normal pension of Rs.9,707/-. Apart from pension, she also received Rs.9,96,403/- as the retiral benefits of the deceased. The only daughter of the deceased is married and settled with her husband. Nousad, the elder _OP(CAT) No.227/2018_ 4 brother of the applicant, is an autorickshaw driver and making livelihood for himself. The applicant too is working in a private press and earning income from there. Under the circumstances, the petitioners herein contend that the claim made in Ext.P1 application before the Tribunal is unsustainable and the impugned order at Ext.P4 is to be set aside. 5. We heard Shri B.Rajesh, learned Standing Counsel appearing for the Railways and Shri T.Rajasekharan Nair, the learned Counsel appearing for the respondent/applicant. 6. There are three points raised for consideration before us. First, that the retiral benefits and pension granted to the widow of the deceased employee would save the family from the vagrancy and therefore, the claim for compassionate appointment cannot be considered. Secondly, that the elder brother of the applicant is gainfully employed and contributing to the family so as to enable the family to tide over the penurious situation caused due to the death of the employee. Thirdly, that the applicant himself is _OP(CAT) No.227/2018_ 5 gainfully employed, and therefore, the family has sufficient means and is not facing any sudden financial crisis created by the demise of the employee. 7. Our attention was drawn to the Master Circular No.16 relating to appointment under compassionate grounds, which details the circumstances in which appointments of dependents of railway servants on compassionate grounds may be made consequent to the death of the Railway servants in the course of duty or on their dying in harness or are medically incapacitated/decategorised. 8. There is no dispute that the dependent of a Railway servant, who dies in harness while in service before retirement, is entitled to claim the benefit of compassionate appointment. It is stated in the Master Circular that compassionate appointments in such cases may be delinked from the payment of settlement dues. The scheme also states that normally only the father is taken to be the breadwinner of the family. In the event, the wife and husband are both railway employees, on account of death of the husband, employment is _OP(CAT) No.227/2018_ 6 permissible to a ward, but not on account of the death of the wife. A perusal of the Master Circular does not indicate the receipt of retiral benefits or pension by the spouse of the employee as a reason for rejection of the claim of a ward of the employee under the scheme for compassionate appointment. The learned Counsel for the petitioners relies on the decision in _**State Bank of**_ ## _**India & others v. Surya Narain Tripathi, (2014) 15 SCC**_ _**739**_ wherein it was held thus: _“(9) In all the matters of compassionate appointment it must be noticed that it is basically a way out for the family which is financially in difficulties on account of the death of the bread earner. It is not an avenue for a regular employment as such. This is in fact an exception to the provisions under Article 16 of the Constitution. That being so, if an employer points out that the financial arrangement made for the family subsequent to the death of the employee is adequate, the members of the family cannot insist that one of them ought to be provided a comparable appointment. This being the principle which has been adopted all throughout, it is difficult for us to accept the submission made on behalf of the respondent.”_ ## In _**State of Himachal Pradesh & another v. Shashi Kumar,**_ _**(2019) 3 SCC 653**_ , it was held that the fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making and that the circulars issued by the Finance _OP(CAT) No.227/2018_ 7 Department fixing income slab cannot be construed to be an amendment of the policy but are clarificatory/ explanatory intended to guide the decision-maker on the concept of indigency incorporated in the scheme. In the above decision, it was reiterated that there is no right to compassionate appointment and that such an appointment is an exception to the general rule that appointment to any public post in service of State must be made in accordance with Articles 14 and 16 of the Constitution. The basis for the policy is immediacy of need for financial assistance faced by the family of the deceased employee consequent to his death and that the terms on which such applications would be considered are subject to policy framed by the State. 9. Coming to the case in hand, the fact that retiral benefits of the deceased employee was given to his widow, is no reason to deny employment to his ward on compassionate ground. Every Railway employee draws pension and on his demise his wife/ husband gets the family pension. If the payment of pension is to be taken as a criteria to deny employment on compassionate _OP(CAT) No.227/2018_ 8 ground, all dependents from the purview of the scheme, would have to be excluded. In some organisations, there is an upper limit prescribed to deny appointment on compassionate ground. There is no such upper limit in the circulars pertaining to appointment on compassionate ground of dependents of Railway employees, who die in harness. The fact that the elder son of the deceased was employed as an autorickshaw driver is also no reason to deny the benefit to the younger son. The earnings of the elder son as an autorickshaw driver has not been enquired into to find out whether he is profitably employed and taking care of the family as well. 10. Even though there is a vague allegation that the applicant is employed in a private press, there is no material on record to show that the allegation is true. The applicant is well past his thirties and is yet unemployed and unmarried. He took trouble to clear his SSLC examination, belatedly. Under the circumstances, it was not proper for the petitioners to have declined the claim of compassionate appointment to _OP(CAT) No.227/2018_ 9 the applicant. We find no reason to overturn the impugned order of the Tribunal. In the result, the Original Petition is dismissed. No costs. **Sd/-** **V.CHITAMBARESH** **JUDGE** **Sd/-** **ASHOK MENON JUDGE** _OP(CAT) No.227/2018_ 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF OA 180/00657/2017 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P2 COPY OF THE REPLY STATEMENT IN OA 180/00657/2017 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P3 COPY OF THE REJOINDER FILED BY THE APPLICANT IN OA 180/00657/2017 ON THE FILES OF THE CENTRAL ADMINISRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P4 COPY OF THE ORDER IN OA 180/00657/2017 DATED 10TH SEPTEMBER 2018 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.**