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CASE NAME: ASHOK KUMAR MEWARI V. UNION OF INDIA & OTHERS
CASE NUMBER: CIVIL APPEAL NO.—– OF 2023 (Arising out of SLP (C)                             No. 5921 of 2019)

DATED ON: DECEMBER 05, 2023
Quorum: Honourable Justice J.K. MAHESHWARI & Justice K.V. VISWANATHAN

FACTS OF THE CASE:

An employee of the Railways applied for voluntary retirement due to medical ailments, intending to appoint his son Mukesh Mewari on compassionate grounds. The Union of India partially accepted the request but did not consider the request. Dissatisfied, the appellant filed an Original Application No. 200/00398/2015 before the Central Administrative Tribunal, Jabalpur Bench, Jabalpur, which was granted on 11.2.2016. The Tribunal issued directions that the respondent’s counsel’s reliance on the Railway Board’s circular No. E(NG)II/2009/RC-1/CR/2 dated 12.11.2014 is misplaced, and the respondents’ reliance on the Supreme Court’s decision in S.S. Grewal Vs. State of Punjab and others, 1993 Supp (3) SCC 234 cannot strengthen their case. The original application is allowed, and respondents are directed to consider the applicant’s claim for appointment of his son on compassionate grounds within three months.

The said order was challenged in Writ Petition No. 7540 of 2016 before the High Court regarding appointment and invalidation on medical grounds, partially allowed in 2017. The court remitted the matter with observations, stating the Tribunal had made an error by not considering a circular from 2006. The application for compassionate appointment was rejected without challenge, raising questions about its maintainability. The court allowed the petition, quash the order, and remanded it for reconsideration. The appellant’s review was dismissed, leading to a subsequent Writ Petition, which was dismissed, resulting in this appeal.

SCHEME FOR COMPASSIONATE APPOINTMENT

Clause-7: Determination/availability of vacancies

(a) Appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available.

(b) Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post.

ISSUES RAISED

Whether the compassionate appointment can be awarded for voluntary retirement in the employment  under Indian Railways.

CONTENTION OF THE PETITIONER

The petitioner argues that accepting a voluntary retirement prayer is not justified, as it was made in a composite prayer asking for voluntary retirement and compassionate appointment to his son. The court relies on the Food Corporation of India and Another v. Ram Kesh Yadav and Another case, 9 SCC 531. The petitioner’s argument is supported by the Tribunal and High Court orders, which show that the Railways’ clarification issued on November 12, 2014 applies to the petitioner’s case, despite the request for voluntary retirement and appointment to his son prior to the clarification. The order accepting voluntary retirement was passed on September 18, 2013.

CONTENTION OF RESPONDENT

The counsel for the Railways argues that the Circular dated 12.11.2014 is a clarification and will apply to the main Circular. However, the counsel is unimpressed by the petitioner’s application dated 18.06.2013, which was a composite request for voluntary retirement and compassionate appointment to his son. The Department accepted the request before the clarification was issued. The counsel believes it is appropriate to give the respondent one chance to decide the petitioner’s claim for compassionate appointment.

COURT’S ANALYSIS

The respondent reiterated their understanding and relied on the circular dated November 12, 2014. The Government of India, Ministry of Railways, issued a letter of clarification dated March 3, 2009, during the hearing. The subsequent clarification dated November 12, 2014 is based on the same letter, and the findings as recorded by the Tribunal and confirmed by the High Court are in conformity with the said letter.

The Ministry of Railways, through the Railway Board, has laid down that if an employee is medically invalidated or de-categorised and the administration cannot find alternative posts, they may be kept on a supernumerary post in their regular grade until a suitable post can be identified or until retirement. The Circular dated June 14, 2006, which was issued on June 14, 2006, is considered valid and applicable regardless of the clarification of the Board’s letter dated November 12, 2014 regarding medical categorisation of employees. The application for voluntary retirement was made on June 18, 2013, before the classificatory circular dated November 12, 2014. The Board’s letter dated March 3, 2009, was never placed before the Tribunal or High Court to support the contention, and there is no reference to the letter in the Circular of November 12, 2014.

The appellant’s request for voluntary retirement was made instead of offering him an alternative post and his son Mukesh Mewari, a B.Com pass, to be appointed at his place. This means that his request for voluntary retirement can only be allowed if his simultaneous request for compassionate appointment of his son is accepted. This Court had the occasion to consider a similar issue in the case of Food Corporation of India and Another vs. Ram Kesh Yadav and Another (2007) 9 SCC 531, wherein this Court considered whether a conditional voluntary retirement application can be partially accepted, by granting only the request for voluntary retirement without acceding to the condition.

The appellant applied for voluntary retirement under the condition that his son Mukesh Mewari be appointed in his place. The request for voluntary retirement and the request for compassionate appointment were composite. The respondents only accepted the request for voluntary retirement without accepting the request for compassionate appointment to the appellant’s son. The board should accept both requests compositely, accepting both or rejecting them in total. The employer had the option to inform the employee that compassionate appointment could not be given due to existing norms, but this was not done in this case. The appellant’s request for compassionate appointment was not considered.

JUDGEMENT

In view of the above discussion, we allow this appeal and set­aside the orders passed by the Tribunal in the Original Application and review respectively and the order dated 13.11.2018 of the High Court. We also quash the order dated 10.11.2023 passed by the West Central Railway, Jabalpur Division, Jabalpur.

we direct that compassionate appointment, in the applicable post, be given to the Appellant’s son Mukesh Mewari within a period of 4 weeks from the date of communication of this order. No order as to costs.

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Click here to view the full judgement: ASHOK KUMAR MEWARI VERSUS UNION OF INDIA & OTHERS

JUDGEMENT REVIEWED BY: ABHISHEK SINGH