IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3235 of 2006 ***** Md.Ali @ Chhote Nawab son of late Shamsul Zoha resident of village Lalbagh P.O. Lalbagh Vijaya Bank district Darbhanga. …… ……. Petitioner Versus 1. Central Administrative Tribunal, Patna Bench, Patna through the Registrar. 2. The Union of India through the Secretary Ministry of Railway New Delhi. 3. The Divisional Railway Manager (Karmik) Sonepur district Saran. 4. The Mahaprabandhak, Eastern Railway Gorakhpur. 5. The Divisional personal officer E.C. Railway Sone district Saran. …….. Respondents ----------- For the Petitioner : Mr. S. Arshad Alam, Advocate Mr. Gautam Kumar Yadav, Advocate Ms. Anjum Praveen, Advocate Mr. Md. Arif, Advocvate For the Respondents : Mr. Shabbir Ahmad, Advocate ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 20th October, 2008. The petitioner was unsuccessful before the Central Administrative Tribunal in the original application seeking his appointment on compassionate ground and for pension. According to the petitioner, his father, Shamsul Zoha was engaged by Railways in the year 1963 as a Gangman on casual basis. He acquired the temporary status of Gangman in the Railways. That the petitioner’s - 2 - father had remained absent from duty since 2nd June, 1980 is not in dispute. He died on 9th April, 1991. After about nine years of his father’s death, the petitioner in the year 2000 approached the Central Administrative Tribunal for a direction to the Railways to appoint him on compassionate ground and pay him family pension. The Central Administrative Tribunal disposed of the original application on 25th July, 2000 by the following order: - “In the circumstances, we direct that this OA be disposed of with a direction upon the respondents to deal with the pending representation of the applicant in accordance with law and to pass a speaking and reasoned order with regard to the applicant’s claim of appointment on compassionate grounds. It would be appreciated if his representation is disposed of as such within three months from the date of communication of this order.” 2. In pursuance of the direction given by the Central Administrative Tribunal, the representation made by the petitioner was decided on 25th April, 2001. In its order dated 25th April, 2001 the concerned authority noted that Late Shamsul Zoha had not worked for the period from 2nd June, 1980 to 9th April, 1991. Since he remained absent for about 11 years prior to his death, he could not be held to be in service at the time of his death and, consequently, his son (the present petitioner) was not entitled to appointment on compassionate ground. That the petitioner has been communicated with that order is clearly seen from Annexure-A/1 and Annexure-A/2. 3. On receipt of the order dated 25th April, 2001, the petitioner approached the Central Administrative Tribunal by filing a - 3 - contempt application. The contempt application was disposed of by the Tribunal on 31st January, 2003 directing the Railways to pass a speaking order. Consequently, the concerned authority in the Railways considered the matter and passed an order on 31st July, 2003, rejecting the petitioner’s claim for appointment on compassionate ground. The legality of the order dated 31st July, 2003 has been put in issue by the petitioner by filing original application being O.A. No. 746 of 2003 before the Central Administrative Tribunal. The Tribunal did not find any merit in the original application and dismissed the same. Hence this writ petition. 4. The only question that falls for our consideration is whether on the date of his death i.e. 9th April, 1991, Shamsul Zoha was in employment of the Railways or not? 5. Paragraph 301 of the Indian Railways Establishment Code (Part I), inter alia, provides for termination of service of temporary Railway servants. It is not necessary to reproduce paragraph 301(6) in its entirety. The relevant provision in the present case is the note appended to paragraph 301 (6), which reads thus: - “No notice of termination will be necessary in a case where temporary railway servant is deemed to have resigned his appointment and ceased to be in employment if such a person remained absent on extraordinary leave beyond a limit of 5 years for whom no show cause notice is required as in the case of permanent railway servants.” 6. What is provided in this provision is that notice - 4 - of termination is not necessary where temporary railway servant has remained absent beyond a limit of five years as he will be deemed to have resigned and ceased to be in employment. As noticed above, the petitioner’s father remained absent (we assume that he remained absent because of his illness) from 2nd June, 1980 until the date of his death i.e. 9th April, 1991 is not in dispute. Having remained absent for a period beyond five years, he ceased to be in employment as he would be deemed to have resigned under the afore-noticed provisions. Since he is deemed to have resigned having remained absent beyond the period of five years, obviously, he could not be considered to be in employment on 9th April, 1991 i.e. date of his death. Since he was not in employment on the date of his death, question of appointment on compassionate ground or family pension would not arise. Moreso, family pension is not admissible to the son of the deceased son. 7. The Tribunal relied upon the aforesaid note appended to paragraph 301(6) and held that once an employee is deemed to have resigned and ceased to be in employment he forfeits the right of family pension and, consequently, the right of appointment in favour of dependents for compassionate appointment. This finding of the Tribunal does not call for any interference by us in extraordinary jurisdiction under Article 226 of the Constitution of India. 8. By way of foot note, we may observe that any scheme for appointment on compassionate ground is to enable the - 5 - dependent member/s of the deceased employee to tide over the financial crisis that may have struck due to death of the sole earning member. In the present case the deceased employee died on 9th April, 1991 and, admittedly, the petitioner was major at time. He, however, approached the Central Administrative Tribunal in the year 2000 i.e. almost nine years after the death of his father. Even otherwise, the very purpose of grant of appointment on compassionate ground is lost in the facts and circumstances of the present case and in any case at this distance of time after 17 years of the death of the deceased employee, we find no justification for any order of appointment of the petitioner on compassionate ground. 9. Writ petition is dismissed with no order as to cost. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-