IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10..6..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 17608 and 21678 of 2007 W.P. No. 17608 of 2007: R. Vasugi ... Petitioner -vs- 1. Union of India Rep. by its General Manager Southern Railway, Park Town Chennai-3 2. The Chief Personnel Officer Personnel Branch Office of the General Manager Southern Railway, Park Town Chennai-3 3. The Senior Divisional Personnel Officer Personnel Branch Divisional Railway Manager's Office Chennai Division Chennai-3 4. The Registrar Central Administrative Tribunal Chennai 5. G. Senthil Kumar ... Respondents W.P. No.21678/2007 1. Union of India Rep. by its General Manager Southern Railway Park Town, Chennai https://hcservices.ecourts.gov.in/hcservices/ 2. The Chief Personnel Officer Personnel Branch Office of the General Manager Southern Railway Park Town, Chennai-3 3. The Senior Divisional Personnel Officer Personnel Branch Divisional Railway Manager's Office Chennai Division Chennai ... Petitioners -vs- 1. The Registrar Central Administrative Tribunal Chennai 2. G. Senthil Kumar 3. R. Vasugi ... Respondents Petitions under Article 226 of the Constitution of India praying to issue a writ of Certiorari to call for the records pertaining to the order dated 04.5.2007 passed by the Tribunal in O.A. No. 732 of 2006 and quash the same. For Department : Mrs. Aparna Nandakumar For Petitioner : Mr. P.V.S. Giridhar in W.P. No.17608/07 for M/s P.V.S. Giridhar Associates & for R3 in W.P. No. 21678 / 07 For Respondent 5 : Mr. AR. L. Sundaresan, SC in W.P. No. 17608/07 for Mr. G. Thiagarajan & for R2 in W.P. No. 21678 / 07 COMMON ORDER K. CHANDRU, J. Heard the arguments of Mrs. Aparna Nandakumar, learned Standing Counsel representing the Union of India represented by the Railways, Mr. P.V.S. Giridhar for M/s P.V.S. Giridhar Associates appearing for the petitioner and the third respondent in W.P. Nos.17608 of 2007 and 21678 of 2007 respectively and Mr.AR.L.Sundaresan, learned Senior Counsel https://hcservices.ecourts.gov.in/hcservices/ appearing for Mr.G.Thiagarajan for the fifth respondent and second respondent in W.P. No. 17608/07 and W.P. No. 21678 / 07 respectively and perused the records. 2. The petitioner in W.P. No. 17608 of 2007 challenges the order of the Central Administrative Tribunal (CAT) made in O.A. No. 732 of 2006 dated 04.5.2007 wherein and by which the compassionate appointment dated 13.9.2006 given in favour of the petitioner was set aside and a direction was given to the Railways to consider the case of the fifth respondent Senthil Kumar for grant of such appointment. Against the very same order, the Union of India has filed W.P. No. 21678 of 2007 and both the writ petitions were heard together and a common order is being passed. 3. One M. Gunasekaran, who was working as a Khalasi in the office of Chief Crew Controller at Jolarpettai, died on 21.10.1999. Even before his death, his first wife Mrs. Kasthuri died in the year 1983 and thereafter, he married one R. Vasugi (petitioner in W.P. No. 17608 of 2007). The said Gunasekaran left behind the following legal heirs:- 1. Smt. R. Vasugi Wife 2. Smt. Vasumathi Daughter (Through First wife) 3. Shri G. Senthil Kumar Son (Through First wife) 4. Shri G. Kasirajan Son 5. Shri G. Rahul Son 4. The circular of the Railways relating to compassionate appointment with reference to eligible person reads as follows:- "Son / daughter / widow / widower of the employees are eligible to be appointed on compassionate grounds in the circumstances in which such appointments are permissible. Where the widow cannot take up employment and the sons / daughters are minor, the case may be kept pending till the first son / daughter becomes a major ie., attains the age of 18 years, subject to time limits as provided under Para – (V) of the Circular." 5. However, G. Senthil Kumar, the first wife's son and the first respondent herein sent a representation dated 29.11.1999 stating that he and his sister Vasumathi alone are the legal heirs. Therefore, all the terminal benefits due to the death of his father should go to them to the exclusion of the petitioner R. Vasugi and her children. He filed a Civil Suit in O.S. No. 141 of 2000 before the District Munsif Court at Thirupathur and prayed for a declaratory relief. The said suit was dismissed by a judgment dated 29.11.2004. The learned Munsif found that Mrs. Vasugi was a legally wedded wife and her marriage took place subsequent to the death of his first wife. On the basis of the said https://hcservices.ecourts.gov.in/hcservices/ finding, 1/4th share of the DCRG was directed to be paid to Senthil Kumar and the balance was paid to Vasugi. Likewise, an appropriate share in the Group Insurance was also paid to Senthil Kumar and out of the pension amount, 50% was paid to Vasugi and the balance 50% to Senthil Kumar. 6. However, Senthil Kumar filed O.A. No. 210 of 2006 seeking for full amount of gratuity. The CAT disposed of the said O.A. by its order dated 14.7.2006 and directed the Railways to consider his representation. The Railways, by an order dated 14.8.2006, considered the representation and held that Senthil Kumar was not eligible for the entire benefit. In the meanwhile, Vasugi was appointed on compassionate ground on finding that she was eligible for getting the same in terms of the Rules of the Railways. 7. The Railways made an investigation and found that Vasugi was having two school going children and was living in a small rented house and as a Noon Meal Organiser, she was getting a monthly salary of Rs. 1464/-. On considering her request, she was appointed as an Helper Grade II by an order dated 30.9.2006. It is this appointment which was challenged by G. Senthil Kumar in O.A. No.732 of 2006. It was his case that he was deaf and dumb as well as an indigent person and he does not have any regular source of income. He also submitted that as he was 24 years old, 50% of the share of his pension will cease within one year and he will be virtually driven to the streets. 8. A reply statement was also filed by Vasugi stating that in terms of the circular, she alone was eligible to get appointed. The payment earned by her as a Noon Meal Organiser was only a consolidated pay which was not enough to support the family and that there was no illegality in the order of appointment granted to her. She also stated that she had submitted her resignation resigning from the post of Noon Meal Organiser and thereafter, joined the Railways and has been working in that post since then. The Railways also supported her case before the CAT. 9. The CAT, by its order dated 04.5.2007, came to the conclusion that since the request for appointment was made by Vasugi after five years, it is contrary to the circular issued by the Railways and, therefore, it was unauthorised. It also held that the case of Senthil Kumar deserves greater sympathy and the Railways should consider his case for employment. It is against this order, Vasugi and the Union of India have filed the present writ petitions. 10. Pending the writ petition, interim stay was granted in both the writ petitions on 09.5.2007 and 26.6.2007 respectively and by virtue of the interim order, the said Vasugi is continuing in her job. The question that arises for consideration is whether the appointment made in favour of Vasugi is justified or not. https://hcservices.ecourts.gov.in/hcservices/ 11. As can be seen from the circular extracted above, the said Vasugi, being the widow of late Gunasekaran, is in the eligible list for getting compassionate appointment and only when there is a difficulty, the question of other legal heirs being considered for appointment will arise. The CAT cannot consider relative merits of the cases between the mother and the son and recommend the case of the son for employment to the detriment of the mother's claim. It must also be seen that the Railways have conducted a thorough investigation about the financial status of Vasugi and thereafter only appointed her on compassionate grounds. It was well within the knowledge of Railways that she was already employed as a Noon Meal Organiser and that her income was not sufficient. Pursuant to the said offer of employment, she also resigned from the earlier service and she has been working in the Railways since the last two years. It is open to the Railways to waive a delayed application. In the present case, obviously she was waiting for the outcome of the Civil Suit filed by the step son questioning her marriage with his father and hence, the delay is clearly explainable. Therefore, we do not want to interfere with the order of the appointment given to Vasugi and we have no hesitation in setting aside the order passed by the CAT in that respect. 12. However, we do not want to dispose of the matter without finding a solution to the grievance projected by the fifth respondent Senthil Kumar. Therefore, we directed the Union of India to find out whether the said Senthil Kumar can be given an employment also. 13. But Mrs. Aparna Nandakumar, learned counsel for the Railways, informed this Court that they cannot grant any appointment. But at the same time, since Senthil Kumar is a disabled person, he can always apply for any post and his case may be considered on the merits of his application. 14. In the light of the stand taken by the Railways, we directed the petitioner and the fifth respondent to be present in the Court and explored the possibility of a mutually agreed solution so as to give a quietus to this case. Accordingly, they were also present before this Court. 15. On behalf of the petitioner Vasugi, the following affidavit dated 29.01.2008 was filed by her. "I respectfully state that the third respondent and myself are currently receiving a family pension of Rs.1275/- (Rupees One thousand Two Hundred and Seventy Five only) per month. I am given to understand that the family pension would not be paid to the third respondent from September 2007 on his attaining the age of 25 years. If his family pension is stopped, I hereby undertake to pay a sum of Rs. 1500/- (Rupees One Thousand and Five https://hcservices.ecourts.gov.in/hcservices/ Hundred Only) per month to the third respondent from October 2008 till the date of my retirement. I wish to point out that I am not in a pensionable post and therefore cannot make any payment after my retirement or cessation of employment." It may be noted that the term 'third respondent' used herein actually refers to the 'fifth respondent'.) 16. She had also stated in paragraph 8 of the reply statement dated 03.02.2007 filed before CAT that she is willing to protect Senthil Kumar and his sister anytime. Though she claimed that the said Senthil Kumar was employed in a Private concern drawing Rs. 4000/- per month, the said allegation was denied by Senthil Kumar. The fact that he was engaged in a private employment was admitted before us but no details regarding the emoluments was forthcoming. 17. The salary slip for the month of December 2007 / January 2008 of Vasugi was also produced and her gross salary for that month was approximately, Rs. 5,735/-. Judicial notice can be taken note of the fact that consequent to Pay Commission's recommendations, her salary may be revised in future. Though in the affidavit dated 29.01.2008, she had agreed to pay Rs.1500/- to Senthil Kumar from October 2008 and she later submitted through her counsel that she will abide by any reasonable amount fixed by this Court. We are of the view that the sum of Rs.1500/- is too meagre for the son to maintain himself. Considering that he is deaf and dumb and the petitioner being the step mother, is bound to protect him, we feel that she should pay a sum of Rs.2500/- from October 2008, the date on which Senthil Kumar will cease to get pension on reaching the age of 25 years. Till September 2008, she should pay Rs.1000/- every month to Senthil Kumar. The said amounts shall be paid by Mrs. Vasugi on or before 10th of every month either by cash or cheque till her retirement as undertaken by her. Parties are at liberty to make application before this Court seeking for modification of this portion of the order if there are any change of circumstances. 18. The writ petitions are dismissed with the above directions. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri https://hcservices.ecourts.gov.in/hcservices/ To 1. The Registrar, Central Administrative Tribunal, Chennai. 2. The General Manager Southern Railway, Park Town Chennai-3 3. The Chief Personnel Officer Personnel Branch Office of the General Manager Southern Railway, Park Town Chennai-3 4. The Senior Divisional Personnel Officer Personnel Branch Divisional Railway Manager's Office Chennai Division, Chennai-3 1 cc To Mr.G.Thiagarajan, Advocate, SR.28059. W. P. Nos. 17608 & 21678 of 2007 CK(CO) RVL 16.06.2008 https://hcservices.ecourts.gov.in/hcservices/