IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 2588 of 2006 Between: Smt. M. Pushpha Naga Surya Kala W/o Late M. Veeraswamy R/o H. No. 16-37-2A, V th Street, Sambamurthy Nagar Kakinada, East Godavari District ..... PETITIONER AND 1 UOI rep by The General Managar, South Central Railway Secunderabad 2 The Divisional Railway Manager, South Central Railway, Vijayawada Division, Krishna District .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue Writ of Mandamus or any other appropriate Writ order or direction in O.S. No. 265/05 of 2-9-2005 on the file of Central Administrative Tribunal Bench, Hyderabad as illegal arbitrary not only violation of rules in force but also against the principles of natural justice under Art 14, 16 of the Constitution of India, consequently set a side the order passed in O.A. No. 265/05 dt 2-9-2005 and further direct the respondents to consider the case of widow's son M. Srinivasu under Compassionate Ground appointment in terms of Rly. Bd.'s Letter No.E(NG) III/78/Rc-1/1 dt 30-4-1979 circulated by CPO/SC in his S.C. NO. 24/97 (Circular Lr. No. P(R) 268 dt 10-2-97) and pass such other order/orders as the Hon'ble Court deem fit and proper in the interest of principles of natural justice. Counsel for the Petitioner:MR.G.SANYASI RAO Counsel for the Respondent No.: MR.R.S.MURTHY The Court made the following : . VE & PSR, JJ. W.P.No. 2588 of 2006 O r d e r: (Per P. Swaroop Reddy, J.) This writ petition is filed against the orders of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad in O.A.No.256 of 2005. 2. The facts are as follows: The husband of the petitioner (for short “the deceased”, while working as Technician Grade-II under the respondents (herein after called as “Railways”) fell sick; his left leg was amputated and he suffered heart problem also. Therefore, he submitted a representation on 28.1.2003 for voluntary retirement on medical grounds, after he was medically decategorised in Class B-1 and B-2 and after he was called for screening test for observation along with other medically decategorised staff and was asked to take alternative employment. Along with his request for voluntary retirement, the deceased also requested for providing appointment to his son on compassionate grounds, which was not considered and he was retired on 30-9-2004 vide proceedings No. B/P.11/II/GS/Vol.2 of the Divisional Office, (Personnel Branch), South Central Railway, Vijayawada dated:8-9-2004 and subsequently he demised on 17.12.2004 i.e., within three months of his voluntary retirement. As the case for appointment of the son of the deceased, on compassionate grounds was pending with the Railways, the petitioner herein filed the above OA., before the Central Administrative Tribunal. 3. The learned Tribunal dismissed the OA., observing that the contention of the applicant, that the left leg of her husband was amputated; he was declared unfit for Class B-1 and B-2 class and was found fit for Class C-1 sedentary duties is not in dispute. He sought for voluntary retirement on condition of appointing his son on compassionate grounds. But, in view of the Circular No.21/ 2000 which prescribes that “in cases of medical decategorisation i.e., those cases in which an employee medically unfit for the post held at present; but is fit to perform the duties of alternative suitable post in lower medical category, the request for appointment on compassionate grounds to an eligible ward will not admissible, even if the employee chooses to retire voluntarily on his being declared medically decategorised. Such an employee may then either be continued in a supernumerary post or allowed to retire voluntarily if he so desires but without extending the benefit of appointment on compassionate grounds to a ward”. Thus, in spite of his being offered Class-C1 post, the deceased did not continue in service, as such his ward is not eligible for compassionate appointment. 4. In the present writ petition also, the petitioner has taken similar contentions, as in the O.A. 5. The Railways filed counter contending that the husband of the petitioner was offered supernumerary post after he became sick. Though initially he expressed his willingness for absorption in the alternative supernumerary post, later on he opted for Voluntary retirement. His request for appointment of his ward on compassionate grounds could not be considered in view of the Railway Board Circular dated: 18.1.2002, which reads: “In cases where an employee has been medically invalidated/decategorised and when the administration cannot find a suitable alternative post for such an employee, he may be kept on a supernumerary post in the grade in which he was working on regular basis, till such time a suitable post can be identified or till his retirement, whichever is earlier. As these instructions provide for continuation in service of a medical invalidated/ decategorised employee, there would be no occasion for an employee to be retired from service on medical ground. Therefore, according to these instructions, in such case, the occasion to consider a request for appointment on compassionate ground of an eligible ward would not arise. The matter has been reviewed pursuant to a demand raised by the staff side in the DC/JCM and it has been decided that incases where an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement. In such cases, request for appointment on compassionate ground to an eligible ward may be considered. In the case of medical decategorisation i.e., those cases in which an employee medically unfit for the post held at present, but is fit to perform the duties of an alternative suitable 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 declared medically decategorised. Such an employee may then either be continued in a supernumerary post or allowed to retire voluntarily if he so desires but without extending the benefit of appointment on compassionate grounds to a ward”. It is contended by Railways that the case of the petitioner’s son for appointment on compassionate grounds was not considered, in view of the above circular. The contention of the petitioner that her husband became 100% medically unfit and was unable to discharge duties is incorrect. 6. Now the point for consideration is whether the son of the petitioner is entitled for compassionate appointment. 7. The following facts are not in dispute. The date of birth of the deceased is – 6.2.1951. He suffered amputation of left leg, apart from heart ailments and was diagnosed asunder: “Atherosclerotic peripheral vascular disease 100% occlusion of distal right superficial femoral artery 100% occlusion of right external iliac artery. Advise: Percutaneous trasluminal angioplasty of right superficial femoral artery occlusions” The deceased has been requesting for voluntary retirement subject to the condition of his son being appointed on compassionate grounds. He was screened and diagnosed as not fit for other jobs, except for sedentary jobs and it was decided to create supernumerary posts in Class © Category and appointment was made. He accepted for voluntary retirement on 8.9.2004 and within three months thereafter he died on 7.12.2004. Thus the husband of the petitioner not only suffered amputation of left leg, on account of which he became immobile; he was also a diabetic and suffered serious heart ailment, as two of his arteries were affected. He was advised angioplasty – that means he was in a very precarious condition, though in the screening test he was not categorized. The very fact that he died within three months of his voluntary retirement on 8.9.2004 would show the fact that he was seriously ill and in all probability he was completely not in a position to discharge any official duties. Though it is not relevant with reference to Rules, the fact that even after his death on 17.12.2004 he was left with more than six years of service is a fact to be recognized. 8. In paragraph-6 of the counter, which is extracted above, it is stated that “in case where an employee is totally incapacitated and is not in a position to continue in any post, because of medical condition, he may opt for retirement. In such cases, the request for appointment on compassionate grounds to an eligible ward may be considered. No doubt, the subsequent paragraphs shows that in case where the employee is found to be medically unfit for the post held, but he is fit to perform the duties in an alternative suitable post in lower medical category, the request for appointment on compassionate grounds to an eligible ward would not be admissible, even if the employee chooses to retire voluntarily.” 9. In our opinion, in the present case, the case of the deceased falls in the category where the employee was totally incapacitated and was not in a position to continue in any post, because of his medical condition. Though the screening test conducted by the department did not refer to the same. The fact that he suffered amputation of left leg and serious heart ailment, two of his arteries were completely damaged, he was an acute diabetic at that stage and he demised within three months of his retirement, would support this conclusion. Obviously, the conditions referred to in the circular dated: 18-1-2000 are incorporated to discourage cases of false medical invalidation taken solely with the object of getting their wards appointed by the employee. But, in the present case, as held by us, the circumstances would show that the deceased-employee, the husband of the petitioner herein was not in a position to continue in any post, because of his critical condition and desired voluntary retirement with an option for compassionate appointment to his son. 10. Both sides have relied on several authorities in support of their respective contentions with regard to the appointment in case where an employee retires voluntarily on medical invalidation. We are of the opinion that these authorities have no application to the facts of this case, in view of our finding that it is a case where, on facts the deceased employee was not in a position to discharge any duties and was in fact, comes within the scope of Circular No.21/2000 daed:18.1.2000 referred to in the counter. 11. In the circumstances, we hold that the writ petition is liable to be allowed and it is accordingly allowed directing the respondents to appoint the son of the petitioner to any suitable post, on compassionate grounds, within three months from the date of communication of this order. No costs. __________________ V. ESWARAIAH, J. July 10, 2009. *BVS _______________________ P. SWAROOP REDDY, J.