It is trite that in the matter of compassionate appointment, any belated claim would frustrate the very object of the scheme of the Government, which is an exception to regular appointments in Government and is also a welfare measure, which does not stand in the way of Article 14 of the Constitution. However, a belated claim when the family has managed to live demolishes any presumption as to the family being indigent or in dire need of financial assistance. The aforesaid law has not only been laid down in Life Insurance Corporation of India v. Mrs. Asha Ramachandra Ambedkar & another, JT 1994 (2) SC 183 but also in National Hydroelectric Power Corporation & another v. Nanak Chand & another, 2005 (1) SC SLJ 102.
2. In the light of above, an order passed by the respondents on 10.11.2005 where the request of applicant No.2 for compassionate appointment on medical de-categorization of his deceased father, has been turned down on the ground that the appointment can be processed only on the application of former employee.
3. A brief factual matrix transpires that the husband of applicant No.1 while working as ESM-III was medically invalidated w.e.f. 15.9.1989 and had subsequently died on 4.9.1998. A request for compassionate appointment of one Ram Kishan, elder son of deceased employee, on attainment of majority, was made for compassionate appointment on medically incapacitation of the deceased employee, which was turned down on the ground that the certificate was forged. However, a similar request when made subsequently by applicant No.2 was turned down in 2003 when raked up again, led to the impugned order passed.
4. Learned counsel for the applicants stated that delay would not come in the way of the applicants in the light of General Manager letter dated 19.4.1998 whereby in the matter of compassionate matter, though a limit of 5 years from the occurrence of event is prescribed but with relaxation upto 20 years on examination and prior approval of General Manager by forwarding a detailed proposal.
5. In the light of above, it is stated that the family consists of about seven people, out of which no one is employed and the family is living in penury since the medical de-categorization of the deceased employee. Accordingly, it is stated that once there is no requirement under the rules for request for compassionate appointment on medical invalidation be processed through the erstwhile employee, now the grounds taken in the reply would not be treated as part of an order and the matter requires consideration by the Railways.
6. On the other hand, Shri RL Dhawan, learned counsel for respondents stated that applicant No.1s deceased husband retired on 15.9.1989. Request of his son Ram Kishan for compassionate appointment was turned down, as the mark sheet of high school was found forged. A request made to appoint third son Rakesh Kumar on compassionate grounds having been made on 4.9.1998 belatedly, the claim cannot be countenanced.
7. Learned counsel would also contend that the family has managed to live, as such the family is not indigent and does not require financial assistance.
8. In the rejoinder, reiterating the pleas taken in the OA, certain orders have been mentioned by the applicants.
9. No doubt, General Manager has the power to condone the delay upto 10 years in according compassionate appointments and delay upto 20 years can be condoned with the prior approval of Railways. But, at the outset, on careful consideration of the rival contentions of the parties, I am of the considered view that the object of compassionate appointment, as envisaged by the DOPT in Central Government as per their OM of 1998, is to redress the family whose only earning member has expired and left the family in penury. Grant of compassionate appointment to the extent of 5% of the post in direct recruitment quota is to redress the family from severe financial crisis. However, it does not mean that compassionate appointment can be claimed as a right rather it is only a right to be considered in accordance with the instructions. Though Master Circular 16 of the Railways envisaged grant of compassionate appointment to the wards of medically de-categorized persons but the same, in my considered view, would devolve a right to be considered. The only scope for grant of compassionate appointment would have to be in accordance with law as when a person employed in Government dies in harness and the family being indigent under severe financial crisis, one of the eligible and major person from the family is to be considered for grant of compassionate appointment on various parameters and factors envisaged from time to time by the Government and Railways respectively by way of issuing circulars and instructions.
10. A Full Bench of Andhra Pradesh High Court in Govt. of Andhra Pradesh & others v. D. Gopaiah, 2002 (1) ATJ 96 took cognizance of DOPT OM of 9.6.1998 while dealing with the compassionate appointment on medical incapacitation and held the same to be against Constitution. The following observations have been made: 31. The matter relating to unconstitutionality of compassionate appointment came up for consideration before the Apex Court in Auditor General of India v. G.Ananta Rajeshwara Rao, (1994) 1 SCC 192. The Memorandum, which was the subject matter of the said decision, provide that Secretaries or Joint Secretaries in the Ministries/Department are competent to appoint, in relaxation of the procedure of recruitment through the Staff Selection Commission or Employment Exchange, but subject to the other requirements set out therein, the son /daughter or near relative of the government servant, who died in harness leaving, his family in immediate need of assistance, in the event of there being no other earning member in the family, to a Group C post or Group D post. The High Court found that the Memorandum was not violative of Article 16 (2) of the Constitution of India. The Apex Court referring to Clause (2) of Article 16 stated the law thus: A reading of these various clauses in the memorandum discloses that the appointment on compassionate grounds would not only be to a son, daughter or widow but also to a near relative, which was vague or undefined. A person who dies in harness and whose members of the family need immediate relief of providing appointment to relieve economic distress from the loss of the bread winner of the family need compassionate treatment. But all possible eventualities have been enumberated to become a rule to avoid regular recruitment. It would appear that these enumberated eventualities would be breeding ground for mususe of appointments by compassionate grounds. Articles 16(3) to 16(5) provided exceptions. Further exception must be on constitutionally valid and permissible grounds. Therefore, the High Court is right in holding that the appointment on ground of descent clearly Violates Article 16(2) of the Constitution. But, however, it is made clear that if the appointments are confined to the son/daughter or widow of the deceased Government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there no other earning member in the family to supplement the loss of income from the bread winner to relieve the economic distress of the members of the family, it is unexceptionable. But in other cases it cannot be a rule to take advantage of the memorandum to appoint the persons to these posts on the ground of compassion.
32. The Apex Court, therefore clearly held that the appointment on compassionate ground in favour son/ daughter or widow of a government servant, who died in harness, to assist the family to relieve economic distress by sudden demise of the employee is valid and it is not the ground of descent simpliciter, but exceptional circumstance for the grounds mentioned. It was observed that in other respects Article 16(2) is clearly attracted.
33. There cannot, therefore, be any doubt whatsoever that the Apex Court has put its seal in the matter of grant of compassionate appointment on any ground other than death.
11. If one has regard to the above, for want of any decision by the Delhi High Court on the subject, the decision of the High Court of Andhra Pradesh is binding on me and as per the ratio deci dendi, I am satisfied that the very object of compassionate appointment would frustrate if the same is to be considered and accorded to a ward of medically incapacitated person. The only scope and condition precedent for consideration for grant of compassionate appointment is when the earning member of the family being government servant dies in harness. By according compassionate appointment to a legal heir of medically incapacitated person would amount to towing the line of descent and despite the family is living and is getting the retiral benefits, yet a right has been accorded to dehors the usual process of selection to consider and grant one the compassionate appointment on medical invalidation. This frustrates the very object of Articles 14 & 16 of the Constitution where the aforesaid Act encroaches upon not only the quota meant for the compassionate appointees whose only earning member died in harness but also those, who are craving for an opportunity in direct recruitment to apply for the post on usual procedure to be adopted. The said reduces the scope and zone of consideration, which would be an antithesis to Article 14 of the Constitution.
12. Recently, a Constitution Bench of the Apex Court in Secretary, State of Karnataka & others v. Umadevi & others, 2006 (4) SCALE 197 held any appointment indirectly dehors the rules or regularization thereof as an antithesis to principle of equality enshrined under Article 14 of the Constitution.
13. The aforesaid provision for compassionate appointment on medical invalidation to a ward would also come in the category where the right of others are violated. Such inaction is violative of Article 16 (2) of the Constitution. Though, we are not adverting to the request of the applicants for compassionate appointment on medical invalidation, but the reasoning given by the respondents to reject the claim is misconceived. There is no provision under the Master Circular 16 as a condition precedent for an application for compassionate appointment on invalidation to be moved by the erstwhile employee. In such an event, any pleading in the counter reply would not supplement in any manner the reasoning recorded in the order.
14. However, when compassionate appointment on medical invalidation is turned down, still a right of the applicants to seek appointment on compassionate grounds, otherwise being family on the ground that it consists of seven to eight persons and none of them is working, the indigent condition of the family, circumstances, etc. are to be seen by the Railways, specifically when General Manager has a right under the instructions ibid to entertain a belated request on approval.
15. I also find that this part of consideration has never been made by the respondents. Accordingly, not acceding to the request, as prayed for by the applicants, for compassionate appointment on medical invalidation, this OA stands partly allowed with a direction to the respondents to consider the request of the applicants for compassionate appointment strictly in accordance with Master Circular No.16 and the guidelines issued from time to time, after considering the circumstances, final conditions and other parameters involved and also the entertainment of belated claim by the General Manager exercising his jurisdiction to condone the delay. The aforesaid consideration would culminate into a reasoned order to be issued within three months from the date of receipt of a copy of this order. No costs. ( Shanker Raju ) Member (J) /sunil/