Smt. K.K. Sushama v. The General Manager, Southern Railway, Park Town, Chennai; Divisional Railway Manager, Southern Railway, Trivandrum Division; Senior Divisional Personnel Officer, Southern Railway, Trivandrum Division

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 27TH DAY OF JANUARY 2017/7TH MAGHA, 1938 OP (CAT).No. 35 of 2017 () --------------------------AGAINST THE ORDER IN O.A.NO.99/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 29.9.2016 PETITIONER: ------------- SMT.K.K.SUSHAMA AGED 57 YEARS, W/O LATE V.P.PAVANAN, VALLAYAPARAMBIL HOUSE, MULAVUKAD PO, ERNAKULAM.682 504. BY ADVS.SRI.T.C.GOVINDASWAMY SMT.KALA T.GOPI SMT.T.N.SREEKALA RESPONDENTS: ----------------- ## 1. THE GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN PO, CHENNAI.3. ## 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILAY, TRIVANDRUM DIVISION, TRIVANDRUM.14. ## 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM.14. BY ADV. SRI.N.K.SUBRAMANIAN, SC, RAILWAYS BY SRI.C.S.DIAS,SC, RAILWAYS THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 27-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 35 of 2017 () --------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS: --------------------------- EXHIBIT P1: TRUE COPY OF ORDER DATED 29TH SEPTEMBER 2016 IN O.A. NO.99/2016 RENDERED BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2: A TRUE COPY OF THE O.A NO.99/2016, DATED 1.02.2016 ALONG WITH ITS ANNEXURES. EXHIBIT P3: A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS. RESPONDENTS' EXHIBITS: NIL ----------------------------- // true copy // TKS P.S. To Judge ## **C.T.RAVIKUMAR & DAMA SESHADRI NAIDU, JJ.** ------------------------------------ O.P.(CAT)No.35 of 2017 ------------------------------------Dated 27[th] January, 2017 ## **JUDGMENT** ## **Ravikumar, J.** The unsuccessful applicant before the Central Administrative Tribunal, Ernakulam Bench in O.A.No.99 of 2016 approached this Court by filing the captioned original petition mainly challenging the order passed by the Tribunal whereby and whereunder her prayer for direction to the respondent to give appointment on compassionate grounds to her elder son, was declined. She moved the Tribunal on being aggrieved by the denial of compassionate appointment to her elder son as per Annexure-A2 by the third respondent. 2. The facts of the case, as appearing from Ext.P1, the copy of the O.A and the pleadings in the captioned original petition, are as follows:- The petitioner is the widow of one V.P.Pavanan who died in harness while working as Gangman in Southern Railway. She is aged 57 years and the son for whom she requested for compassionate appointment was aged 29 years at the time of the death of his father. O.P.(CAT)No.35 of 2017 2 In fact, he died when hardly three months left for his retirement on superannuation. After his death, to be precise, just 78 days prior to the date of retirement, on 14.5.2013, she submitted an application for getting employment under the Compassionate Employment Scheme to her elder son. The date and other details of the said application are conspicuously absent in the pleadings and proceedings. Nonetheless, it is the common case that aggrieved by the rejection of the application earlier, she moved O.A.No.181 of 2015 before the Central Administrative Tribunal, Ernakulam Bench. It was disposed of with a direction to the respondents to consider the matter afresh. In compliance with the directions of the Tribunal the matter was reconsidered. Evidently, after such reconsideration, the claim for compassionate appointment of the son of the petitioner was again rejected as per Annexure-A2 in Ext.P2 . It is mainly challenging Annexure-A2 order that O.A.No.99 of 2016 was filed. The challenge against it had three strands: firstly, the reasons assigned by the authorities for declining to grant compassionate employment to her son are absolutely unsustainable; secondly, the factum of receipt of terminal benefits on the death of her husband was wrongly worked out to decline her request unjustly; and thirdly, indebtedness to the tune of about 3,00,000/- and inability to pull on sans succor in the form of₹ employment assistance under the Compassionate Employment Scheme O.P.(CAT)No.35 of 2017 3 were not properly considered. Furthermore, it is submitted by the learned counsel appearing for the petitioner that the Tribunal had failed to take into account all such aspects and contentions in the proper perspective and therefore, the impugned order passed by the Tribunal invites interference and the petitioner is entitled to the reliefs sought for. 3. We have heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for the respondents. 4. Raising the contentions adverted to hereinbefore, the petitioner solicits to upturn the impugned order and to grant the reliefs whereas, the respondents raised contentions to uphold the impugned order. In elaboration of the contentions the petitioner contends that her husband died after a prolonged treatment for his illness and he had to spend considerable amount for that. The deceased had availed a loan of 3,00,000/- from the Co-operative Bank and a substantial₹ portion of the settlement benefits was utilized to close the said loan and also to pay off the personal loan of the deceased. That apart, it is contended that the applicant herself had an accidental fall resulting fracture on her left leg and in connection with that she had incurred an amount of 87,483/- towards medical expenses. Lastly, it is contended₹ O.P.(CAT)No.35 of 2017 4 that the petitioner and her family had no other source of income and the family was solely depending on the deceased for their livelihood. On the other hand, the respondents contended that the deceased is survived by the petitioner, two unmarried sons aged 28 and 29 years besides a married daughter. It is the further contention that the petitioner was given a total amount of 6,33,199/- towards settlement₹ benefits. The petitioner is now in receipt of 12,500/- as pension from₹ the Railways. The family house is a tiled one constructed in a plot of land having 8 cents. Evidently, it is raising such contentions that the respondents resisted the petitioner's challenge against Annexure-A2 (in Ext.P2) and the claim for compassionate appointment to her elder son. Above all, it is contended that the deceased was left with only 78 days' of service at the time of his death. 5. At the very outset, it is to be noted that appointment on compassionate ground is not actually a right, but only a concession and it cannot be reduced into a method of appointment. It is being given to deserving family in destitute owing to the demise of the bread winner of the family to tide over the immediate financial crisis occurred. In this case, a mere scanning of the impugned order would reveal that the Tribunal virtually, appreciated all aspects and relevant considerations. In the decision in **MMTC Ltd.** v. **Pramoda Devi ((1987) 11 SCC 390)** O.P.(CAT)No.35 of 2017 5 the Hon'ble Apex Court held thus:- “the object of compassionate appointment is to enable penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment.” The petitioner herself depicted her family condition in Ext.P1 - copy of the OA and also in the captioned original petition. Evidently, she is now aged 57 years and her unmarried sons were aged 28 years and 29 years at the time of the death of her husband. During his life time the daughter was given in marriage. True that, she had stated that in that regard the deceased had availed a loan of 3,00,000/- and it is her₹ own version that utilizing the substantial portion of the settlement benefits, which is 6,33,199/- the said loan account and the personal₹ loans of the deceased were cleared. The treatment expense of the petitioner for her accidental fall was below 90,000/-. Thus, it is₹ evident that indebtedness was redeemed utilizing substantial portion of the settlement benefits. It is to be noted that the pleadings would not indicate the entire amount received towards settlement benefits, were utilized for that purpose. Evidently, the only daughter was already given in marriage and the loan availed to meet the expenses was also closed. The unmarried sons of the petitioner are hale and hearty as O.P.(CAT)No.35 of 2017 6 there is no contra case for the petitioner and both of them are now aged more than 30 years. As contended by the respondents, how can the said sons be treated to had been depending at the age of 28 years and 29 years, on their father ? The petitioner who is aged 57 years was certainly depending on the deceased employee. She now, lives in a tiled house constructed in a plot of 8 cents. She is getting 12,500/-₹ as pension from the Railways. The employee would have reached the normal age of superannuation had he remained alive for 78 days more. Therefore, but for his death he would have received salary as an employee only for three months. True that, the petitioner had lost her husband. But, the family condition, as revealed from the very narration of the petitioner would indicate that the petitioner who is getting ₹ 12,500/- as pension got two sons who had already crossed 30 years to look after her. If the very purpose and object of the Compassionate Employment Scheme is imbibed how can it be said the petitioner is justified in making a claim for appointment of her elder son. Its aim is not at all to provide employment to such a family ignoring the question whether they are actually deserving the benefit under the scheme. Since the scheme is not a method of employment the purpose and object of the scheme would constrain us to hold it should be extended only to the really deserving family of a deceased employee. The trend of developing it as a right and to give a go by to the ratio of the O.P.(CAT)No.35 of 2017 7 aforesaid decision, which was subsequently restated in many a decision of the Hon'ble Apex Court, would result in violation of the constitutional philosophy of equality and equal opportunity in the matter of public employment. The power available to this Court in matters like this, is the power to judicial review by invoking the power under Articles 226/227 of the Constitution of India going by the decision of the Hon'ble Apex Court in **L.Chandra Kumar** v. **Union of India & others** reported in **AIR 1997 SC 1125** . Taking into account all the aforesaid aspects and perusing the impugned order, we do not find any illegality, irregularity or perverseness warranting an interference with the impugned order in invocation of the power of review under Articles 226/227 of the Constitution of India. The upshot of the above discussion is that this original petition is liable to fail and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **DAMA SESHADRI NAIDU Judge** TKS