Dismissed

Balbir Masih v. Union of India and Others

Himachal Pradesh HC16 Jul 2024CWP/2401/2020

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition filed by the son of a deceased Railway employee seeking compassionate appointment. The Court held that the competing widow's request for a similar appointment for herself was valid under the Railway Board circulars, allowing justification for her appointment over the dependent son.

What did the court decide?

Writ petition dismissed with no order as to costs.

Balbir Masih Vs Union of India and… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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( 2024:HHC:5189

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No.2401 of 2020 Reserved on: 03.07.2024 Pronounced on: 16.07.2024

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Balbir Masih		……Petitioner
	Versus
Union of India & Others		…Respondents

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___________________________________________________________________________ Coram:

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Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting?

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For the petitioner :	Mr.	Guna Nand Verma, Advocate.
For the respondents :	Mr. Gen 4.	Balram Sharma, Deputy Solicitor eral of India, for respondents no.1 to
	Mr. Mr. resp	Romesh Verma, Sr. Advocate with Digvijay Singh, Advocate, for ondent no.5.

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M.S. Ramachandra Rao, Chief Justice .

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The petitioner is the son of an employee by name David Goodwin, who was employed in the Indian Railways as Blacksmith at Northern Railways , Shimla and was died on 25.09.2009.

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The petitioner is the son of the said employee through his deceased first wife by name Smt. Subhadra Devi.

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After the death of the petitioner’s mother, the petitioner’s father had married the 5^th respondent and she has three minor children.

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After the death of his father, the petitioner applied for appointment on compassionate grounds in the year 2009 immediately after his father’s death, but at that time the petitioner did not have the minimum educational qualification of 8^th Class which was the norm laid down for such appointment by the respondents, and he was advised to apply again after obtaining the prescribed minimum educational qualification from a recognized Board.

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Thereafter, the Railway Board through a letter dt. 09.12.2010 enhanced the prescribed minimum educational qualification for compassionate appointment from 8^th Class to 10^th Class.

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As per the then existing rules, appointment on compassionate grounds was to be made from the dependent family members, i.e. spouse or son or daughter or brother/sister in the case of unmarried Government servant, who is wholly dependent on the Government servant at the time of death in harness or retirement on medical grounds, as the case may be.

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The petitioner had previously filed O.A. no.63/01373/2017 before the Central Administrative Tribunal (in short “the Tribunal ) to consider his case for appointment on compassionate grounds.

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The said O.A. was disposed of by the Tribunal with a direction to

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the competent authority to decide the pending representation of the petitioner for appointment on compassionate grounds in terms of the Policy of the Department within two months and communicate its decision to the petitioner.

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The said representation was rejected on 05.08.2018 by the competent authority stating that the petitioner’s step mother had also submitted a request on 14.10.2009 for compassionate appointment in favour of the petitioner, but at that time petitioner was not having required minimum educational qualification and he was only 4^th pass and so his case could not be considered; that the petitioner was then advised through a letter issued in November 2009 to acquire the minimum educational qualification of 8^th pass from some recognized Board and thereafter to apply and his application would be dealt with thereafter; and in the meantime, the Railway Board issued a letter on 09.12.2010 increasing the prescribed minimum educational qualification for compassionate appointment from 8^th to 10^th pass. It was stated that the step mother of the petitioner had given another request on 15.01.2016 seeking compassionate appointment for her smaller son Sh. Praveen David instead of the petitioner.

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It was stated by the competent authority that to decide the veracity of her claim, an enquiry was conducted, in which, it was

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established that she was the 2^nd wife of late employee and that his fist wife had died on 02.12.1986, and thereafter, the deceased employee had married with the 5^th respondent; that in the enquiry, it was also found that the 10^th Class Certificate secured by the petitioner was genuine, but she herself made a request on 20.12.2016 that he can be then offered compassionate appointment, if it is not being offered to her 2^nd son.

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However, it was stated that the 5^th respondent did not give a “No Objection Certificate” in the form of an affidavit and neither did the petitioner and, therefore, their case was treated as closed on 18.08.2017.

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It was also stated that the 5^th respondent had again made a request with an affidavit on 13.07.2018 and sought appointment for herself on compassionate grounds, which is under examination.

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It was further stated that the first right of job on compassionate grounds is of the widow/widower or any of the ward of his or her choice and since the 5^th respondent had asked for job for herself, petitioner cannot be given the said job.

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This order of the competent authority was again assailed by the petitioner in O.A. no.063/1384/2018 before the Central Administrative Tribunal, Chandigarh.

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The Tribunal directed expeditious processing of the case of the 5^th respondent for compassionate appointment as per the existing rules and the Railway Board’s Circular no.3 of 2009.

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It held that if for any reason compassionate appointment cannot be given to her, then based on the extant Policy and after obtaining an affidavit/No Objection Certificate from the widow of the deceased employee, petitioner’s case can be considered for such appointment.

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Assailing the same, this Writ petition is filed.

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Petitioner’s counsel contended that the order passed by the Tribunal is unsustainable and that the official respondents cannot insist on a “No Objection Certificate” from the 5^th respondent.

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He also contended that the 5^th respondent had applied for compassionate appointment only in the year 2018 at a highly belated stage; that she is intent on harassing the petitioner since 2009 and, therefore, he has a preferential right for compassionate appointment over her.

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Counsel for the official respondents no.1 to 4 refuted the said contentions and supported the reasoning contained in the impugned order.

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It is stated that since as per the Railway Board’s Circular no.3 of 2009 cases of compassionate appointments have to be considered by the competent authority in favour of the widow/widower or any ward of her

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or his choice, and since the 5^th respondent, being the widow of the exemployee had requested for compassionate appointment in her favour, petitioner’s claim cannot be considered. It is also stated that the 5^th respondent has three children who are majors.

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The 5^th respondent also filed a reply opposing the claim of the petitioner and adopted the stand of the official respondents.

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She contended that she had already been appointed on 27.01.2021 as a Work Khalsi Level-I and that she has been working in the said position since then.

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She contended that she belongs to the weaker sections of society and has to look after her three minor children, and though she wanted compassionate appointment for her younger son, she thought it better to apply for a job herself on compassionate grounds, so that she can run the family and look after her children.

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She asserted that as per the rules, the first right to get the compassionate appointment accrues to the widow and, therefore, she was rightly appointed by the official respondents legally to the post of Work Khalasi Level-I.

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She stated that she was working in the said post for more than two years and it would be unjust to now remove her from the said post.

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The official respondents filed an additional reply stating that there

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was a Railway Board’s letter dt. 09.12.2010 which though prescribed a

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minimum educational qualification of 10^th Class, there is a later Circular no.102/2012 issued by the Railway Board on 14.09.2012, wherein, the Board had decided that in case of appointment of a widow not fulfilling the requirement of prescribed educational qualification, she can be placed in the Pay Band-I directly without insisting on fulfilment of educational qualification norms, provided the appointing authority was satisfied that the duties of the post against which she is being appointed can be performed with the help of someone job trainee.

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We are of the opinion that since as per the Railway Board’s Circular no.3 of 2009 issued on 06.01.2009, first choice would be that of the widow or widower and thereafter of any ward of his or her choice, and since the 5^th respondent has herself sought compassionate appointment in order to take care of her three children who had since become majors, we see no illegality on the part of the official respondents appointing her on compassionate grounds instead of the petitioner.

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Though the 5^th respondent had earlier stated on 14.10.2009 that she had no objection for giving compassionate appointment to the petitioner born to her husband through his first wife, since the petitioner at that time did not possess the requisite minimum qualification, his case could not be considered.

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We, therefore, do not find any merit in the Writ petition and it is

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accordingly dismissed.

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Pending miscellaneous application(s), if any, shall also stand

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disposed of.

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(M.S. Ramachandra Rao) Chief Justice

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(Satyen Vaidya) July 16, 2024. Judge

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(Yashwant)

Balbir Masih v. Union of India and Others

Case brief

What is this about?

What did the court decide?

Balbir Masih v. Union of India and Others

Case brief

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What did the court decide?

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