IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIFTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 19114 of 2004 Between: Smt. V. Saraswathi, W/o Late V. Appa Rao, Opp: Jayavarapu Buildings, Raipet, Nidadavolu - 534 301, W.G. District. ..... PETITIONER AND 1 The General Manager, South Central Railway, Secunderabad. 2 The Divisional Railway Manager, South Central Railway, Vijayawada,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.A.No. 1284/2003 dated 25-6-2004 on the file of Central Administrative Tribunal bench as illegal, arbitrary not only violation of rules but also against the Art 14, 16 of the constitution of India and consequently set aside the impugned orders of R2 letter No. B/P 563/205/2001 dated 28-3-2002 and further direct the respondents to consider the request of the petitioner ( widow) sons appointment under compassionate grounds in terms of Railway Board Letter No. E(NG) III/78/RC 1/1 dated 30-4-1979 (SI.Cir.No. 24/97) communicated CPO/SC Lr.No. P (R) 268 dated 10-2-1997 as the impugned order is arbitrary, illegal and violation of rules in force Counsel for the Petitioner:MR.G.SANYASI RAO Counsel for the Respondent No.: . The Court made the following : VE & PSR, JJ. W.P.No. 19114 of 2004 O r d e r: (Per P. Swaroop Reddy, J.) This writ petition is filed by the petitioner, aggrieved by the order passed by the learned Central Administrative Tribunal, Hyderabad Bench, Hyderabad in O.A.No. 1284 of 2003. 2. The case of the petitioner is that her husband joined in Railways, the respondents herein, on 6.6.1968 in Group-D and later he was promoted as Switchman. While he was undergoing training for higher promotion in the post of Goods Guard, he expired leaving his wife, two sons, a daughter and his father, who were all depending on him. He was left with three years of service at the time of his death. After his death, she made a representation on 17.8.2001 to the third respondent to consider her son’s appointment on compassionate grounds, as the entire terminal benefits were spent for clearing the debts and for the daughter’s marriage. Though the eldest son of the petitioner is working at Bhuvaneshwar, he is living separately with his family and was not any help to the family. The third respondent vide his letter No.B/P.Con.563/205/2001, dated:28.3.2002 regretted her claim for her son’s appointment on compassionate grounds As per Circular Letter No.P®/268 dated:10.2.1997, when offering appointment to a widow, or son or daughter, the case of another son or daughter already working and living separately should not be kept under consideration, as her son acquired job basing on his merit and is living separate from the family of the deceased. The authorities cannot act in violation of Board’s Circular No.24/97/ letter No. P® 268 dated:10.2.1997 of CPO/SC. In spite of repeated requests made by the petitioner, the respondents did not consider for appointment of her on compassionate grounds. The authorities have acted in violation of Rules, as well as Articles 14, 16 and 21 of the Constitution of India. Their claim is contrary to the Serial Circular No.24/97 issued by the CPO/SC, on the strength of the Railway Board’s Order No.E(NG)/III/78/RC-1/1 dated:30.4.1979, wherein, in paragraph-2, 4 (III) and 5 of the Circular, while considering the case for appointment on compassionate grounds to the widow, or son or daughter, it need not be checked up whether another son or daughter was already working. The petitioner has further contended that when one Thyagarajan expired, his wife was immediately appointed on compassionate grounds, though her family was not facing any financial hardship. On the same analogy, the case of the son of the petitioner could have been considered. The Rules can not be mis-interpreted showing favoritism and the act of the Railways is discriminatory. 3. A reply was filed by the Railways contending that the family of the deceased was paid (i) Death gratuity of Rs.2,35,950.00; (ii) GIS Rs.43,187.00 and Leave Salary of Rs.71,500.00 Their case for compassionate appointment was examined by the competent authority in terms of the existing Railway Board’s instructions and also taking the financial position of the family depending on the deceased and regretted the claim for compassionate appointment. The applicant was advised of the matter as long back as 28.3.2002; she filed O.A long after the death of her husband on 6.7.2001. Initially the following order was passed on the request for compassionate appointment: “Employee died at the age of 57 years. All dues and family pension have been paid. There appears no financial liability. One son is already in Railways. There are no minor children. The case is therefore regretted.” Reasons are given by the appropriate authority rejecting the claim of the petitioner. The learned Tribunal dismissed the OA by holding that “the applicant’s case does not come under the category of the claim being of indigent circumstances. It could not be said to be a case of financial destitution. The eldest son of the applicant is employed and the daughter is married. The second sonof the applicant has already acquired B.Sc., degree and also being a major, he can manage on his own. As to the applicant, she is getting her pension and she also got terminal benefits of her husband having served the Railways for 33 years. Thus there are no reasons to interfere with the order of railways on the request of the applicant for providing compassionate appointment to her second son. Compassionate appointment is more an exception than a rule and does not give any vested right to get an employment outside the normal recruitment rules unless the applicant’s family qualifies for being covered under one being in indigent circumstances” 4. In the above circumstances, the question is whether the petitioner is entitled for getting employment to her son on compassionate grounds? 5. The following circumstances are not in dispute. The applicant’s husband joined Railways in1968 and died on 6.7.2001, after serving for abut 33 years. He was left with three years of service at the time of his death. He had a married daughter; his eldest son was already employed in Railways, though not on compassionate grounds and his youngest son, who was in pre-graduation, at the time of the death of his father, has now completed graduation and the family has received reasonable amount towards terminal benefits etc and his wife is getting pension. 6. Both sides have relied on different Circulars and authorities on the question. Though the circulars say that the cases for compassionate appointment in the case of the death of an employee should be considered; there are no positive directions thereby giving scope for interpretation. 7. The learned counsel for the petitioner relied on a decision of the Apex Court in Phoolwati (Smt. V. Union of India[1], wherein the Hon’ble Supreme Court held that compassionate appointments shall be given without any delay for eligible candidates. The learned counsel for the petitioner also relied on decision of the Hon’ble Supreme Court in Auditor General of India v. G. Ananta Rajeswara Rao[2]. This decision is not at all applicable to the facts of the present case. In Director of Education v. Pushpendra Kumar[3] and Balbir of Kaur v. Steel Authority India[4] the Hon’ble Supreme Court held that the fact of getting terminal benefits etc., is not a consideration for denying appointment on compassionate grounds. In Govind Prakash Verms v. LIC[5], the Apex Court held that “receiving service benefits is not a ground for denying compassionate appointment, as the compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee, as benefits of service which they get on death of the employee.” 8. In Mukesh Kumar v. Union of India[6], wherein compassionate appointment was denied on the ground that the family is not in financially indigent condition and where there was no sufficient material on the basis of which the conclusion was arrived at with regard to the same, it was held that denial of compassionate appoint is incorrect. 9. The decision in V. Siva Murthy v. State of AP[7] deals more with the cases of persons medically invalidated and claimed appointments on compassionate grounds for their wards. 10. The learned counsel for the Railways relied on a decision of the Hon’ble Supreme Court in I.G. (KARMIK) v. Prahlad Mani Tripathi[8], which is not directly on the subject; but in this decision, the Hon’ble Supreme Court, observed that “compassionate appointment must be confined only to the purpose it seeks to achieve. The idea is not to provide for endless compassion. It was a case where compassionate appointment was accepted for a particular post and thereafter, claim was made for an upper post.” 11. The learned standing counsel for the respondent-railways also relied on a decision of the Hon’ble Supreme Court in Umesh Kumar Nagpal v. State of Haryana[9] wherein the Hon’ble Supreme Court held that neither the government or any public authority are at liberty to relax the rules with regard to appointments; there are certain exceptions to such rules and one such exception is in favour of the dependents of the employees dying in harness. The Hon’ble Supreme Court observed: “One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision in the Rules to provide gainful employment to one of the dependents of the deceased, who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government of the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The Hon’ble Supreme Court further observed: The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, the relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employments which are suddenly upturned. 12. The learned counsel appearing for the respondent-Railways laid much stress on this decision contending that any compassionate appointment shall be subject to the condition of family being in dire need of such employment. The learned counsel contends that in the present case, one of the members of the family is employed, though not on compassionate grounds and that the family has received reasonable amount by way of terminal benefits and pension, as the deceased- employee served the organization for thirty three years, being eligible for full pension. 13. As contended by the learned counsel for the petitioner, in Director of Education v. Pushpendra Kumar (3 supra); Balbir of Kaur v. Steel Authority India )4 supra) and Govind Prakash Verms v. LIC (5 supra), the Hon’ble Supreme Court held that the fact of payment of terminal benefits is not a consideration for denying an opportunity for appointment on compassionate grounds. 14. In the present case, there is no material on record to show that other then the terminal benefits and pension received by the family of the deceased, the family had any other property or income to say that the family can live on that. The circumstance that the son of the deceased has already been employed by the Railways is of no consequence, as that was not an appointment made on compassionate basis and he is not living with other members of the family of the deceased, as he is married and living separately. There is no dispute about the position as held by the Hon’ble Supreme Court, that the fact that one of the sons of the deceased is employed cannot be a ground for refusing appointment on compassionate grounds. 15. The impugned order, which is extracted at page-3 of this order, shows that no enquiry was conducted with regard to the financial position of the family of the deceased, as the order says that there appears no financial liability and it does not say that the family is not in requirement of any support and that the family had any other source of income or property. In this case, there is no dispute that the deceased had more than three years of left over service on the date of his demise and it is not a case, where the deceased was on the verge of retirement. 16. Considering all the circumstances, we hold that this writ petition is liable to be allowed. 17. In the result, the writ petition is allowed directing the respondents to appoint the son of the petitioner to any Class-IV post (by whatever name it is called in the Respondent-Railways), as the intention of appointment on compassionate grounds is only to support the family, as held by the Hon’ble Supreme Court in Umesh Nagpal (9 supra) and other cases, referred to above. The appointment so offered need not to be to any higher post or to a post depending on the rank of the deceased employee and it need not also be commensurate with the educational qualification of the person to be appointed, as the intention is to save the family of the deceased from hardship and there need not be endless compassion, as held by the Hon’ble Supreme Court in the case of I.G. (KARMIK) (8 supra). He (the son of the petitioner) would accept the employment to the post offered in case of dire need and in case he rejects the same for the sake of better post, the automatic assumption would be that the family is not in dire need of employment. The appointment shall be made within three months from the date of receipt of a copy of this order. In the circumstances, there shall be no order as to costs. __________________ V. ESWARAIAH, J. July 15, 2009. *BVS _______________________ P. SWAROOP REDDY, J. [1] 1991 (IV) Administrative Tribunal Cases 937 [2] AIR 1994 SC 1521 [3] AIR 1998 SC 2230 [4] AIR 2000 SC 1596 [5] 2005 SCC (L&S) 590 [6] AIR 2007 SC 3077 [7] 2009 (1) SLR 514 [8] 2007 (6) SCC 162 [9] 1994 (2) SCALE 834