Maharani Devi & ANR.
Vs. Union of India & Ors. [2009] INSC 1090 (15 May 2009)
Judgment
Reportable IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3581 OF
2009 (Arising out of SLP (C) No. 16263 of 2006) Maharani Devi & Anr. ....
Appellants Versus Union of India & Ors. .... Respondents
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.
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.
11.
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.
12.
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.
13.
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.
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.
9 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.
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