Bhagwati Prasad Choure vs Union of India

This is a petition under Article 227 of the Constitution of India, calling in question tenability of an order-dated 24.11.2008 passed by the Central Administrative Tribunal in the matter of rejecting petitioner''s claim for grant of compassionate appointment.

Petitioner Bhagwati Prasad Choure was working in the Railway Establishment as a ''gang-man''. It seems that he was sent for medical examination and on such medical examination the Chief Medical Superintendent, Bhopal found that petitioner is suffering from ''malingering'' and is not fit to remain in service, and he was declared unfit for all classes of service. Accordingly his services came to an end. He sought compassionate appointment for his son and the same having been dismissed, the matter travelled to Central Administrative Tribunal and the Tribunal having also dismissed the claim, therefore, this writ petition.

The only ground canvassed at the time of hearing was that as per the Railway Board''s Circular dated 18.1.2000, when an employee is totally incapacitated and is not in a position to continue working on any post, he is allowed an option for retirement and in such cases, request for compassionate appointment is to be considered.

It is the grievance of the petitioner that he was declared medically unfit because of ''malingering'' and psychological problems and as he is declared unfit for all classes of duty, it is stated that based on the provisions of this Circular dated 18.1.2000, his son should have been granted compassionate appointment. Instead thereof, relying upon a provision contained in Railway Board Establishment Medical Manual, paragraph 512(ii), and Circular No.165 of 1987, the claim has been rejected.

It was emphasized by learned counsel for the appellant that once the Railway Board''s subsequent Circular dated 18.1.2000 contemplated a provision for grant of compassionate appointment, rejecting the claim based on an earlier Circular of the year 1987 was not called for and as the Tribunal has dealt with the matter in an improper manner, it is stated that the matter be interfered with.

Learned counsel for the Railway Board rejected the aforesaid and took us through the findings recorded by the Tribunal, from paragraph 7 onwards, to say that in a given case of ''malingering'', a particular provision is available in the statutory manual and if action is taken with regard to the ailment covered by a particular provision, the General Circular of 18.1.2000 shall not apply and in dealing with the matter on such consideration, it is argued that the Tribunal has not committed any error.

We have considered the rival contentions and we find that the provisions of the Circular dated 18.1.2000 reads as under:

�(II) Future Cases:-

(i) When an employee is TOTALLY INCAPACITATED and not in a position to continue on any post, he may be allowed to opt for retirement. In such cases, request for appointment on compassionate grounds to an eligible ward may be considered, based on the merits of the case.

(ii) In the cases of MEDICAL DECATEGORISATION, i.e� those cases in which an employee becomes medically unfit for the post held at present but is fit to perform the duties of an alternative post in lower medical category, the request for appointment on compassionate ground to an eligible ward will NOT be admissible, even if the employee chooses to retire voluntarily on his being medically decategorised. In such cases, the employee should be either adjusted against a supernumerary post or allowed to retire voluntarily, if he so desires, without extending the benefit of appointment on compassionate grounds to an eligible ward.�

On the other hand, the provision of RBE Circular No.165/87 reads as under:-

�2. A question has been raised whether in a case where a Railway servant is declared unfit for all posts in terms of sub para 512 (ii) of the Medical Manual and is retired from Railway service, compassionate appointment to the ward of such a Railway servant would be admissible. The Board has considered the matter and has decided that in such cases compassionate appointment would not be admissible.�

The provision of paragraph 512(ii) of the Railway Medical Manual lays down the following:-

� �. that where malingering is established, the Railway servant should be declared unfit for all cases.�

The Tribunal has taken note of all the aforesaid aspects of the matter and found that the Circular dated 18.1.2000 is a General Circular and even though it deals with cases where the employee is totally incapacitated, but in such case the words used are ''that the claim may be considered based on merits of the case''. The word ''may'' used in the aforesaid provision is directory in nature and the Tribunal found that in the Circular dated RBA 165/87 when a specific provision based on the Medical Manual, paragraph 512(ii) is available, which deals with cases of ''malingering'', it is held that compassionate appointment cannot be granted. In doing so, we are of the considered view that the Tribunal has not committed any error.

If the provisions of the Railway Medical Manual, paragraph 512(ii), which is reproduced by us hereinabove, is taken note of and which is also contained in the Circular RBE No.165/87 available as Annexure R/1 in the record is taken note of, it would be seen that the Medical Manual specifically provides that where ''malingering'' is established, the Railway servant should be declared unfit for all cases and in such cases, the question of granting compassionate appointment is not attracted. The provisions of paragraph 2 of the RBE Circular 165/87, has to be read alongwith the first part of the Circular, which when reproduced, reads as under:-

� Attention is invited to the provisions in para 512(ii) of the Railway Medical Manual, which lays down that where malingering is established, the Railway servant should be declared unfit for all cases.�

The second paragraph reproduced hereinabove and reproduced by the Tribunal in paragraph 8 of the order, has to be read alongwith paragraph (1) of this Circular, which particularly pertains to ''malingering''.

When based on the Medical Manual in the matter of ''malingering'', a particular provision is applicable, then the General Circular of 18.1.2000 will not be applicable until and unless the specific ailment specified in the Medical Manual is not diluted or modified by the Railway Board.

In the present case, the Tribunal has found that in a case covered by the Medical Manual when a specific provision under Circular RBE 165/87 is stipulated, the General Circular subsequently issued will not be applicable and in doing so, the Tribunal has not committed any error warranting reconsideration.

The petition being devoid of merits is accordingly dismissed.