P. Udayammal & Anr. vs Union Of India & Ors.

Applicants are mother and son. The 1^st applicant was a Railway employee working as Khalasi on regular basis from 18.05.1992 onwards. She was appointed on compassionate basis after the sudden demise of her husband, Karuppasamy, who was working as a Khalasi under the Inspector of Works, Southern Railway, Nagarcoil. She has six children, four boys and two girls. Two boys and two girls are already married. Two boys, Paramasivam and Sasikumar are physically disabled. Paramasivam is orthopaedically handicapped with 65% disability, whereas Sasikumar is a mentally retarded person having 60% disability. The 2^nd applicant, the son of the 1^st applicant, is married and is a coolie. The other son and girls were married and are living separately. They belong to Scheduled Caste community.

According to the applicants, the 1^st applicant was the sole bread winner of the family. Due to poverty, deficiency of healthy food and hardship in maintaining a big family, she fell sick and was under treatment in the Railway hospital for 'immune compromised state, Peripheral Neuropathy, Ataxia, severe IVDP (diffuse disc bulge) L5 nerve compression, sensory motor involvement of peripheral Neuropathy, depression, Diabetes, Hypertension OLD PT, COPD etc.' On 21.04.2016, she was examined by the Medical Committee constituted at Railways hospital, Trivandrum and found fit for alternate employment on medical ground in Class CEE ONE below category with glasses. After the report dated 21.04.2016 she was fitted against supernumerary post pending alternative appointment. Thus after issuing Annexure-A4 memorandum she was allowed to sit in the office without doing any work. She again fell ill and continued treatment in Medical College Hospital till 14.02.2018. On 15.02.2018 the Medical Board again examined her and found that she is unfit in all categories of Railway service. She was due to retire in April 2018.

Immediately on 17.02.2018 herself and the second applicant submitted applications for compassionate appointment, which are marked as Annexures-A7 and A8 respectively. Meanwhile, she retired from service but by Annexure-A9 order the application for compassionate appointment stands dismissed. Aggrieved by the same they have moved this Tribunal seeking to declare that the 2^nd applicant is eligible and entitled to get appointment on compassionate ground due to the unfitness of the first applicant in all categories of Railway Service and to direct the 2^nd respondent to reconsider Annexures-A7 and A8 representations.

The respondents have challenged the O.A. According to them, the O.A. is not maintainable. Admittedly, the 1^st applicant had commenced her service on 18.05.1992 as a Carriage & Wagon Khalasi on compassionate ground of appointment after the death of her husband. On 21.04.2016 she was medically de-categorised and declared medically unfit in B1 and fit in C1 and below and was placed against a supernumerary post in her existing pay and grade pay with effect from 21.04.2016. On 15.02.2018 she was declared unfit for all classes in Railway Service and Annexures-A7 was submitted on 17.02.2018. But in Annexure-R1 Railway Board's letter dated 03.09.1983 it was stipulated that compassionate appointment of an eligible ward of an employee can be considered at the discretion of the competent authority, provided that, if the employee has less than three years of service before superannuation. According to the respondents, Annexure-R1 does not permit compassionate appointment to the second applicant. Moreover, it is stated that since the first applicant had only 72 days left over service for the normal retirement, her plea that her request for voluntary retirement with the condition of giving compassionate appointment to her son on medical de-categorisation could not be accepted. They have also referred to Rule 67(1) of the Railway Services (Pension) Rules, hereinafter referred to as the Rules. Moreover, referring to paragraph 7.II of letter dated 16.02.2000 it is stated that if such a person is found completely unfit, a supernumerary post will be created and he will be absorbed in the supernumerary post meant for physically disabled persons and any fresh recruitment for the post/category from open market from among physically handicapped will be withheld. Referring to Rule 75(6)(a) of the Rules, it is stated that if they have physically handicapped dependents, family pension can be arranged to be paid to them. It is also stated that the first applicant had already been paid an amount of Rs.11 lakhs by way of retirement benefits and is being paid as pension of Rs.10,290/- with applicable D.A.

It is not disputed that the first applicant was employed as a Khalasi in the Railway Service on 18.05.1992 after the untime demise of her husband. The husband had left behind the widow and six children including two girls. Out of the four boys, two are physically handicapped, as evident from Annexures A1 and A2. The first applicant was weak and sick; she again fell ill and ultimately by order dated 15.02.2018 she was found unfit to hold any post and was made to retire from service leaving 72 days left over service. Immediately after passing the order dated 15.02.2018, Annexures-A7 and A8 representations were made seeking employment on compassionate grounds for the second applicant.

As rightly pointed out by the learned counsel it is certain from the reply statement given by the respondents that they had not considered the contentions of the applicants in right seriousness. Annexure-A9, which is the impugned order itself stands testimony to the contention that the matter was considered by the respondents in a light hearted manner. Annexure-A9 reads thus:

This is the reply given to Annexures-A7 representation. From Annexure-A9, head or tail cannot be inferred. It is a bland, cryptic reply, lacking in details. Whatever may be the grounds for seeking compassionate appointment, the respondents should have taken the matter in right seriousness which has not done.

Secondly, Annexure-R1 indicates that if a person is medically de-categorised and offered alternate employment on the same emoluments but it is not acceptable to the employee and he chooses to retire from service, compassionate appointment of an eligible ward of the employee if so requested by him can be considered at the discretion of the compassionate appointment authority provided that the employee has less than three years of service before superannuation, that is, he is past the age of 55 years at the time the decision is taken, the personal approval of the General Manager has to be obtained before the offer of appointment on compassionate grounds. Here, the first applicant was found medically unfit at the final leg of her service, she had only 72 days left for normal retirement. That is less than three years. In such a case when an application for compassionate appointment was filed or when an invalid pension was given, following which applications for compassionate appointment was filed, of course the Railway Board has to exercise its discretion. Any exercise of discretion should be done judiciously on the basis of known principles of law only. The first applicant is an illiterate person who was inducted into Railway service on the death of her husband. Such a person should be apprised the reasons for rejecting the application; that has not been done. If the reason is that, in 2016 when she was medically decategorised and allowed to continue on a supernumerary post, there is nothing on record to infer that she was aware of the availability of the other options etc. Anyhow, the respondents had not shown fairness to the 1^st applicant. In my considered opinion, Annexure-A9 cannot stand judicial scrutiny.

The respondents have referred to some decisions of the Railway Board, but policy of the Railway in the matter of compassionate appointment cannot be inferred from the reply nor the complete policy has been made available before the Tribunal. Instead some very technical contentions have been raised in the reply. As noticed earlier, when it is stated that her two sons are physically disabled having 65% and 60% of disablement, the answer is that they can be arranged for getting pension etc. This is not the way in which an organisation like the Railway is expected to handle a situation like the one in hand. It is very unwholesome.

For the very reason that Annexures-A7 and A8 were not considered in proper perspective and a detailed speaking reply was not given. I think that the applicant is entitled to succeed. Therefore, Annexure-A9 is quashed and the respondents are directed to reconsider the request for compassionate appointment, taking into consideration all the aspects including the field study report of the Welfare Officer, if any, and take a final decision within a period of three months from the date of receipt of a copy of this order.

The Original Petition is disposed of as above. It is made clear that this Tribunal has not expressed any opinion on the merits of the claims raised by the applicants.