Shri Sukhdev Dagduba Vs. the General Manager South Central Railway Rail Nilayam and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/937764
CourtCentral Administrative Tribunal CAT Hyderabad
Decided OnApr-28-2009
Case NumberO.A No.165 OF 2008
JudgeP. LAKSHMANA REDDY, VICE-CHAIRMAN
AppellantShri Sukhdev Dagduba
RespondentThe General Manager South Central Railway Rail Nilayam and Others
Advocates:Counsel for Applicant : K Sudhakara Reddy, Advocate. Counsel for Respondents : V. Rajeswara Rao, SC for Railways.
Excerpt:
this application is filed seeking to set aside the impugned order no. np/ con/ ca/ 78/ 06 dated 25.4.2007 passed by r-3 and for consequential directions to the respondents to consider the case of the applicant's son for appointment on compassionate grounds, as per railway board instructions contained in letters dated 18.10.2000, 26.5.2004 and 14.6.2006. 2. the relevant facts in brief are as follows: the applicant while working as goods driver in nanded division in southern railway, he was directed to undergo periodical medical examination from 22.5.99 to 26.5.99 and in that medical examination, the applicant was found medically unfit for a-i category but found fit only for a-iii category and accordingly medical certificate was issued on 26.5.99. thereafter on 1.1.2000, the applicant submitted a representation to the senior dpo, hyderabad through ame, purna requesting to accept his retirement on medical grounds as per railway board's letter no. e (ng) iii/78/rc-1/1 of 3.9.93. on 3.3.2000, the drm, south central railway wanted the applicant to give unconditional application for voluntary retirement. accordingly, the applicant submitted another representation dated 14.3.2000 in continuation of his earlier representation dated 1.1.2000 requesting for acceptance of his voluntary retirement. in this representation, due to domestic problems is added. the drm in his letter dated 14.5.2000, accepted voluntary retirement of the applicant with effect from 13.6.2000. thereafter, the applicant submitted application on 16.6.2000 and 15.8.2000 to the general manager seeking compassionate appointment to his son. on 30.1.2001, the drm rejected his request on the ground that in terms of railway board's letter dated 10.11.2000, the request of the applicant for appointment to his son on compassionate ground is not admissible as the applicant was placed on special supernumerary post after his medical de-categorization and only thereafter the applicant took voluntary retirement due to domestic problems. the applicant submitted another representation on 4.9.2001. the same was also rejected in october 2001. on 27.1.2003, he submitted an application through retired employees' association to general manager seeking compassionate appointment. as there was no response, another representation was submitted on 28.10.2004. the chief personnel officer called for details from the drm by his letter dated 29.1.2005 and the drm submitted details for the purpose of placing the matter before the general manager. the certificates of the applicant's son were verified and found genuine. the senior dpo, nanded division recommended for providing compassionate appointment to the son of the applicant by his letter dated 17.8.2005 stating that the employee was medically de-categorized between the period 19.4.1999 to 18.1.2000 and sought for voluntary retirement. the senior dpo for drm, nanded approved the recommendation on 18.8.2005. in that letter, it is stated as follows:- “as per serial circular no. 91/ 2004, `compassionate ground appointment may also be considered in favour of wife/ eligible wards of such of the employees who were medically decategorized between the period 29.04.99 and 18.01.2000 and sought voluntary retirement on medical decategorization but were retired after 18.01.2000. such cases are to be considered and decided personally by the general manager on individual merits of each case'. keeping in view the above guidelines, a proposal in favour of sri anil sukhdev, s/o sri sukhdev dagadoba seeking appointment on compassionate grounds against medical decategorisation, is sent herewith for approval of the general manager. the proposal has the personal recommendations of the drm. in this connection, you are requested to communicate the approval of the general manager for processing the request for appointment against compassionate grounds in favour of shri anil sukhdev at an earliest please.” 3. but, in response to the letter dated 18.8.2005, the chief personnel officer stated that drm (personnel), hyderabad informed that the applicant was medically de-categorized but was absorbed in a supernumerary post from 26.5.99 and took voluntary retirement from service due to domestic reasons from 13.6.2000 and therefore, the request of the applicant for appointment of his son on compassionate grounds is not permissible. this letter was issued from general manager's office and it was signed by one shri t. murahari rao for `chief personnel officer'. 4. on 31.10.2005, the senior dpo, nanded addressed a letter to the gm stating that on further examination of the file, it is noticed that the employee initially sought for voluntary retirement on medical grounds vide his application dated 1.1.2000 and subsequently a letter had been addressed to ccc/ pau vide letter no. yp.p.11/elr dated 3.3.2000 to submit unconditional application for voluntary retirement and thereafter the employee submitted an application dated 14.3.2000 for voluntary retirement on ‘domestic troubles’. he further stated in that letter that as the applicant is fulfilling the stipulating conditions laid down in serial circular no. 91/ 2004, the applicant's case may please be reconsidered and put up to competent authority for consideration. on 7.12.2005, the applicant also appeared to have submitted a representation for reconsideration of his request for compassionate appointment to his son. in reply to that representation, shri t. murahari rao for `chief personnel officer' by his letter dated 12.12.2005 informed the applicant that as he has been absorbed in a supernumerary post from 26.5.1999, due to medical decategorisation and retired voluntarily from service due to domestic reasons from 13.6.2000, his request for compassionate appointment to his son, is not permissible and that the instructions contained in serial circular no. 91/ 2004 are applicable only to those railway employees who were medically decategorised during the period from 29.4.99 to 18.1.2000 and discharged from service due to medical decategorisation after 18.1.2000 and therefore those instructions are not applicable to the employees who have retired from service voluntarily. this letter does not refer to the senior dpo's letter dated 31.10.2005 wherein the senior dpo stated that the applicant is fulfilling the conditions stipulated in serial circular no. 91/ 2004. 5. the ministry of railways issued letter rbe no. 78/ 2006 dated 14.6.2006 to all the general managers of indian railways on the subject ‘appointment on compassionate grounds of ward/ spouse of medically de-categorised staff on the railways’ wherein it is stated that a full board meeting decided that compassionate appointment to the wife/ wards/ dependents of partially medically de-categorised staff and who seeks voluntary retirement may be given subject to the condition that the appointment will be given only in the group `d' categories and only in respect of those who are partially de-categorised at a time when they have at least 5 years or more service left. thereafter, the applicant, on 8.11.2006 submitted another representation seeking compassionate appointment to his son stating that his son passed ba and he belongs to scheduled caste community and that he is a medically de-categorised employee and he is facing difficulties and therefore his son may be given appointment on compassionate grounds. on 6.2.2007, the divisional personnel officer, nanded division addressed a letter to gm (personnel)/ scr stating that a proposal in favour of shri anil sukhdev dagodoba (applicant's son) seeking appointment on compassionate grounds against medical de-categorisation is sent for approval of the general manager and the said proposal has the personal recommendations of drm and therefore requested to communicate the approval of the general manager for processing request for appointment against compassionate grounds in favour of the applicant's son at the earliest. the same t. murahari rao `for chief personnel officer' replied stating that it has already been advised vide letter dated 23.9.2005 that shri anil sukhdev is not eligible for appointment on compassionate grounds. it is once again reiterated that drm (p). hyderabad stated that the applicant was medically de-categorized, was absorbed in a supernumerary post from 26.5.99 and while working against the supernumerary post, he took voluntary retirement from service due to his domestic reasons from 13.6.2000 and therefore, the request of the applicant for appointment of his son on compassionate grounds is not permissible. on receipt of that letter,. the divisional personnel officer, nanded division informed the applicant on 25.4.2007 stating that appointment of his son on compassionate grounds has been regretted as the applicant has been absorbed in a supernumerary post from 26.5.99 and while working as such, he took voluntary retirement due to domestic reasons from 13.6.2000. 6. aggrieved by the said communication, the applicant filed the present oa contending that the rejection of the applicant's claim is illegal, arbitrary and in violation of the railway board's instructions contained in letter dated 18.10.2000, 26.5.2004 and 14.6.2006. the applicant contended that the respondents ought to have seen that the applicant was medically de-categorised on 26.5.99 and he sought voluntary retirement only on that account and that there is no other earning member in the family of the applicant and that in view of the railway board's letters dated 26.5.2004 and 14.6.2006, he is eligible to seek compassionate appointment to his son. 7. the respondents contested the application and filed reply admitting that the applicant while working as goods driver was found medically unfit on 26.5.99 to work as goods driver by medical superintendent, purna. but the respondents pleaded that the applicant was found unfit only for a-i category and found fit for a-iii category and hence he was accommodated in a suitable lower medical category post and therefore, in such cases, even if the employee chooses to retire voluntarily, he is not eligible to seek compassionate appointment for his ward as per serial circular no. 21/ 2000. it is further pleaded that as per serial circular no. 92/ 2006 dated 22.6.2006, the cases which were finalized earlier need not be re-opened and that the applicant's claim had already been rejected and therefore, the applicant cannot rely on the railway board's letter dated 14.6.2006 circulated in serial circular no. 92/ 2006. the instructions contained in the serial circular no. 91/ 2004 dated 26.5.2004 are applicable for those railway employees who were medically decategorized during the period from 29.4.99 to 18.1.2000 and discharged from service due to medical decategorization after 18.1.2000 and the applicant was advised by cpo/ scr vide letter dated 12.12.2005 that the three circulars dated 18.10.2000, 26.5.2004 and 14.6.2006 are not applicable to the applicant. it is further pleaded in the reply that in terms of sc no. 21/ 2000, when an employee is medically decategorized, but fit to work in lower medical classification, chooses to retire voluntarily, his wards are not entitled for appointment on compassionate grounds. in the instant case, as the applicant worked in lower medical classification for about nine months, later opted for voluntary retirement on domestic grounds and therefore his son is not entitled to be considered for appointment on compassionate grounds as per sc no. 21/ 2000 dated 11.2.2000 (railway board's letter dated 18.1.2000). the respondents pleaded that there is no nexus between the applicant's decategorisation and voluntary retirement and therefore, serial circular no. 92/ 2006 is not applicable to the applicant. 8. during the course of hearing, the learned counsel for the applicant reiterated the contentions raised in the application. he submitted that though the applicant is entitled to be considered by the general manager, as per railway board's letter dated 26.5.2004 circulated by the serial circular no. 91/ 2004, it was not considered by the general manager, and it was only the chief personnel officer who rejected the application, to be put up before the general manager and that shri t. murahari rao who signed for chief personnel officer in the general manager's office himself took a decision that it is not a case to be considered by the general manager and that the opinion of shri t. murahari rao is erroneous. he submitted that the divisional personnel officer and also the drm, nanded recommended the case of the applicant for consideration by the general manager specifically stating that as per serial circular no. 91/ 2004, the matter is required to be considered by the general manager. in spite of it, mr. t. narahari rao did not agree and simply rejected on the ground that the applicant did not take voluntary retirement on medical grounds and he took voluntary retirement for domestic reasons after he was provided with a supernumerary post. the learned counsel also relied on the railway board's letter dated 14.6.2006 and contended that the conditions mentioned in para 4 (b) are satisfied as the applicant had more than five years' service by the date of partial medical decategorisation and therefore, his case is entitled to be considered by the general manager. he submitted that the chief personnel officer erred in interpreting the circulars. on the other hand, the learned counsel for the respondents, reiterated the contentions raised in the reply. as the learned counsel for the applicant is mainly relying on the railway board's letter dated 26.5.2004 circulated vide serial circular no.91/ 2004 dated 21.6.2004 wherein the railway board directed the gms to personally consider compassionate appointment in favour of wife/ ward of such employees who were medically decategorized between the period 29.4.99 and 18.1.2000 and sought voluntary retirement on medical decategorisation and retired after 18.1.2000 based on individual merits of each case, i considered it necessary to verify the manner in which the applicant's case has been dealt with, and directed the counsel for the respondents to produce the entire files relating to the request made by the applicant for compassionate appointment. accordingly, the learned counsel for the respondents produced the entire file. only on the basis of the said file, the facts were gathered and narrated in these orders. 9. the points that arise for consideration in this application are: (i) whether the applicant took voluntary retirement on account of medical de-categorization? (ii) if so, whether his request for compassionate appointment is required to be considered in the light of the serial circular no. 91/ 2004 dated 21.6.2004? (iii) whether the application of the applicant was considered by the general manager personally as required in serial circular no. 91/ 2004? (iv) whether the applicant's case is required to be considered in the light of the railway board's letter dated 14.6.2006 circulated in the serial circular no. 92/ 2006 dated 22.6.2006? (v) whether the impugned rejection order is sustainable in law? (vi) to what result? 10. point no. (i): as seen from the files produced by the respondents, while the applicant was working as goods driver in nanded division, he was directed to undergo periodical medical examination from 22.5.99 to 26.5.99 and in the said medical examination, the applicant was found unfit to work as goods driver, i.e. under a-i category but he was found fit for a-iii category as per the medical certificate dated 26.5.99. on 1.1.2000, the applicant submitted representation to the senior dpo, hyb/ sc through the ame, purna requesting for retirement on medical grounds since he is medically decategorised on 26.5.99. it is useful to extract that letter: ‘respected sir, with ref:- m.s/ sub. divisional rly. hospital purna no. 0755/ 99 certificate physical fitness of employee of 26.5.99 periodical- examination, unfitted for a-i. i am suffering badly from 22.5.99 to till date under medical for correspondence. i request to accept my retirement on medical grounds as per the rly. board's l/no.h (ng) iii/ 78/ rc-1/1 of 3.9.93 and avoid starvation please.’ but vide letter dated 3.3.2000, drm (personnel), hyderabad advised the applicant to submit unconditional application for voluntary retirement to take further action and then the applicant submitted a letter on 14.3.2000 by adding the words due to domestic troubles while reiterating his request for voluntary retirement as per the earlier representation extracted supra. on 14.5.2000, the drm, hyderabad accepted his voluntary retirement from service with effect from 13.6.2000 by his letter dated 4.5.2000. therefore, it is clear that though the applicant intended to take voluntary retirement on account of his medical decategorisation, the drm insisted him to give fresh application mentioning only domestic reason for voluntary retirement and under those circumstances, the applicant had to submit another representation dated 14.3.2000 adding the words due to domestic troubles . so, it is clear that the applicant was forced to submit fresh representation changing the reason seeking voluntary retirement, though in fact, he wanted retirement on account of his medical decategorisation. the applicant asserted that he wanted to take voluntary retirement on account of medical decategorisation as not fit for driver post. obviously, as the applicant was found unfit for the category of post in which he was working and he was decategorised from a-i to a-iii, he wanted to take voluntary retirement and submitted his application. such a retirement cannot be termed as voluntary retirement due to domestic troubles and not on account of medical decategorisation. in my considered view, the applicant's voluntary retirement is to be treated as voluntary retirement on account of medical decategorisation. in fact, the drm, nanded in his proposal vide letter dated 18.8.2005 sent to the office of the general manager categorically stated that the applicant took voluntary retirement on medical decategorisation and his case is covered under serial circular no. 91/ 2004. thus, this point is found in favour of the applicant. 11. point no. (ii): it is useful to extract the serial circular no. 91/ 2004: “copy of board's letter no. e (ng) ii/2000/ rc-1/gen./17 dated 26.5.04 (re no. 106/ 04) sc 57 to mc-16 sub: compassionate appointment to the wards of medically decategorised staff - relaxation of cut off period. ref: railway board's letter no. e(ng) ii/2000/ rc-1/gen/17dated 6.3.2002. in terms of this ministry's letter under reference, compassionate appointment may be considered in favour of wife/ eligible wards of such of the employees who were medically decategorised between 29.4.99 and 18.1.2000 (both days inclusive) and declared unfit to continue in the posts they were holding but fit to hold posts with lower medical classification, subject to the condition that:- (i) the employee concerned have retired voluntarily between 29.4.99 and 18.1.2000 (both days inclusive) on medical decategorisation during the period; and (ii) such cases are personally considered and decided by the general manager on individual merit of each case. 2. staff side have represented vide item no. 11/ 2004 in the dc-jcm held in march, 2004 that in many of the cases, though the employees were medically decategorised between the period 29.4.99 and 18.1.2000 and sought voluntary retirement on medical decategorisation but were retired after 18.1.2000, the cases for appointment on compassionate ground of such employees have not been considered by the railway administration which is not justified. 3. the matter has been considered by the board and it has been decided that further to board's letter under reference, compassionate ground appointment may also be considered in favour of wife/ eligible wards of such of the employees who were medically decategorised between the period 29.4.99 and 18.1.2000 and sought voluntary retirement on medical decategorisation but were retired after 18.1.2000. such cases are to be considered and decided personally by the general manager on individual merits of each case.” it is not disputed that the applicant was medically decategorised from category-i to category iii between 29.4.99 and 18.1.2000 as mentioned in the first paragraph of the above said circular. as per para 3 of the above said circular, those who are medically decategorised between 29.4.99 and 18.1.2000, but sought voluntary retirement on medical decategorisation and were retired after 18.1.2000, their cases are to be considered and decided personally by the general manager on individual merits of each case. in the instant case, it is found supra that the applicant's voluntary retirement was on medical decategorisation and he is retired with effect from 13.6.2000. therefore, his case is to be considered and decided personally by the general manager on the merits of the case. in his letter dated 18.8.2005, senior dpo stated in para 2 that the proposal has personal recommendation of the drm and that the application is covered under serial circular no. 91/ 2004. further, after the chief personnel officer rejected the proposal on the ground that the applicant though medically decategorised, but was absorbed in a supernumerary post, and later took voluntary retirement due to domestic reasons, the senior dpo, nanded addressed another letter dated 31.10.2005 to the general manager stating that on further examination of the file it is noticed that the employee initially sought for voluntary retirement on medical grounds vide his application dated 1.1.2000 and that only at the instance of the department, he submitted another letter dated 3.3.2000 adding due to domestic troubles and that the applicant's case fulfills the conditions stipulated in serial circular no. 91/ 2004 and hence the applicant's case may be reconsidered and put up to the competent authority for consideration. but, in spite of it, again, the same shri t. murahari rao, for chief personnel officer addressed letter to the applicant on 12.12.2005 stating that his case cannot be considered as he retired not on medical decategorisation but due to domestic reasons. the chief personnel officer did not refer to the recommendations of the local drm in his letter dated 18.8.2005 and 31.10.2005. it is the local drm who is competent to decide about the fact whether the applicant took voluntary retirement due to medical decategorisation or due to domestic reasons. 12. the other reason given by the chief personnel officer is that as the applicant was provided alternative post in a-iii category, took voluntary retirement while working in the alternative post, his case is not entitled to be considered for compassionate appointment. but, it is nowhere stated in the serial circular no. 91/ 2004 that the persons who took voluntary retirement due to medical decategorisation while working in the alternative post for which he was suitable, are not entitled to make a request for compassionate appointment even after voluntary retirement. the respondents again quoted the circular dated 18.1.2000. as seen from the sc no. 91/ 2004, the staff side has represented against the circular dated 18.1.2000 and basing on such representation, the railway board considered and decided that the cases of those who took voluntary retirement on medical decategorisation even after 18.1.2000, are to be considered and decided personally by the general manager on individual merits of each case. therefore, the respondents cannot place reliance on circular dated 18.1.2000 to reject the case of the applicant. as long as the fact that the applicant was medically decategorised within the prescribed period mentioned in the circular and he took voluntary retirement thereafter, the reason for taking voluntary retirement is immaterial. merely because by the date of his taking voluntary retirement he was accommodated in alternative post, it cannot be said that such cases do not cover under sc no. 91/2004. in fact, the railways had introduced the scheme for safety reasons to encourage drivers who are likely to cross 55 years of age, to take voluntary retirement by way of offering appointments to their wards as an incentive. here in the instant case, the applicant was a goods driver and he had more than five years of service left by the date of his medical decategorisation. therefore, it is ununderstandable as to why the chief personnel officer has taken a negative attitude to reject the case of the applicant in spite of the recommendations made by the local drm. in my considered view, the drm rightly stated in his letter dated 13.10.2005, that the case of the applicant is covered under sc no. 91/2004 and therefore, the applicant's case is to be considered personally by the general manager as stipulated by the railway board in the said circular no.91/ 2004. hence, i agree with the drm's views in this regard and i disagree with the opinion of the chief personnel officer that the case of the applicant is not covered under sc no. 91/ 2004. thus, this point is found in favour of the applicant. 13. point no. (iii): as seen from the orders issued by shri t. murahari rao, who signed for chief personnel officer, it is nowhere stated that the general manager considered the merits of the applicant's case personally and then rejected the case. as seen from the sc no. 91/ 2004, the general manager has to personally consider the merits of the case and decide it on merits. the impugned order clearly goes to show that the merits of the applicant's case were not placed before the general manager and the general manager did not consider the merits of the case and decide the matter. on the other hand, the case of the applicant was rejected on the ground that it is not covered under sc no. 91/2004, and on technical grounds that the applicant did not take voluntary retirement on medical decategorisation and he took retirement after he was provided alternative appointment. as per sc no. 91/ 2004, the merits of the case, viz. financial condition of the family and the number of dependents in the family, etc. are to be considered by the general manager personally and then take a decision. in fact, the drm in his letter dated 13.10.2005 specifically pointed out that the matter is to be placed before the general manager for personal consideration. but yet, the chief personnel officer did not do so. hence, in my considered view, the case of the applicant was not considered by the general manager personally as required in sc no. 91/ 2004. thus, this point is found in favour of the applicant. 14. point no. (iv): as seen from the circular dated 14.6.2006, all those employees who are medically decategorised after issuance of railway board's letter dated 18.1.2000 will also be considered under these instructions. but the respondents are relying on the following averment made in the circular: however, such cases which have already been finalised in terms of board's letters no. e (ng) ii/95/ rc-1/94 dated 18.1.2000; 10.11.2000 and no. e (ng) ii/ 2000/ rc-1/ genl./17 dated 6.3.2002 and 26.5.2004 need not be re-opened. as seen from the sc no. 91/2004, there is no such averment to the effect that the cases finalised in pursuance of railway board's letter dated 18.1.2000, cannot be re-opened. on the other hand, sc no. 91/ 2004 was issued as the staff made representations against the instructions contained in board's letter dated 18.1.2000 and the railway board has decided to consider cases rejected under the railway board's letter dated 18.1.2000 also, provided that such cases shall be considered and decided by the general manager personally on the merits of each case. regarding railway board's letter dated 26.5.2004 circulated in sc no. 91/ 2004, the applicant's case has not been considered and decided by the general manager and therefore, it cannot be said that the applicant's case has been finalised in order to exclude the same from the purview of the latest circular dated 14.6.2006. as seen from para 4 of the letter dated 14.6.2006, the full board meeting has decided that the compassionate appointment made to the dependents of partially decategorised employees who seek voluntary retirement, be given subject to the condition that the appointment shall be given only in group-d and it should only be given in cases of employees who are declared partially decategorised at a time when they have at least five years or more service left. in the instant case, admittedly, the applicant was partially decategorised on 29.5.99. as seen from the service certificate of the applicant, his date of birth is 5.9.1945. so, by the date of medically partially decategorisation, the applicant's age was only 54 and therefore, six more years' service was left to him. even by the date of voluntary retirement with effect from 13.6.2000, he had more than five years' service left. this letter was issued in supersession of para 4 of railway board's letter dated 18.1.2000 wherein it is stated that if the employee chooses to retire voluntarily on his being medically decategorised, if he so desires, he may be permitted, but without extending the benefit of compassionate appointment to his ward. the railway board has decided not only totally incapacitated employees, but also partially medically decategorised employees to provide compassionate appointment for their wards provided they had five more years' service left by the date of partial decategorization. therefore, the applicant is entitled to be considered even under the railway board's letter dated 13.6.2006. thus, this point is also found in favour of the applicant. 15. point no. (v): in view of the findings on points (i) to (iv), i have no hesitation to hold that the impugned order of rejection is not sustainable in law and it is liable to be set aside. the general manager is required to be directed to consider the case of the applicant personally and take a decision on the merits of the case taking into consideration the recommendations made by the local drm, nanded under whom the applicant was working by the date of his medical decategorisation. thus, this point is also found in favour of the applicant. 16. point no. (vi): in the result, the application is allowed and the impugned order dated 25.4.2007 passed by r-3 is set aside and the first respondent, general manager is directed to personally consider the request made by the applicant for compassionate appointment to his son and take a decision keeping in view the recommendations made by the local drm under whom the applicant was working at the time of his medical decategorisation. in the circumstances, no order as to costs.
Judgment:

This application is filed seeking to set aside the impugned order No. NP/ Con/ CA/ 78/ 06 dated 25.4.2007 passed by R-3 and for consequential directions to the respondents to consider the case of the applicant's son for appointment on compassionate grounds, as per Railway Board instructions contained in letters dated 18.10.2000, 26.5.2004 and 14.6.2006.

2. The relevant facts in brief are as follows:

The applicant while working as Goods Driver in Nanded Division in Southern Railway, he was directed to undergo periodical medical examination from 22.5.99 to 26.5.99 and in that medical examination, the applicant was found medically unfit for A-I category but found fit only for A-III category and accordingly medical certificate was issued on 26.5.99. Thereafter on 1.1.2000, the applicant submitted a representation to the Senior DPO, Hyderabad through AME, Purna requesting to accept his retirement on medical grounds as per Railway Board's letter No. E (NG) III/78/RC-1/1 of 3.9.93. On 3.3.2000, the DRM, South Central Railway wanted the applicant to give unconditional application for voluntary retirement. Accordingly, the applicant submitted another representation dated 14.3.2000 in continuation of his earlier representation dated 1.1.2000 requesting for acceptance of his voluntary retirement. In this representation, due to domestic problems is added. The DRM in his letter dated 14.5.2000, accepted voluntary retirement of the applicant with effect from 13.6.2000. Thereafter, the applicant submitted application on 16.6.2000 and 15.8.2000 to the General Manager seeking compassionate appointment to his son. On 30.1.2001, the DRM rejected his request on the ground that in terms of Railway Board's letter dated 10.11.2000, the request of the applicant for appointment to his son on compassionate ground is not admissible as the applicant was placed on special supernumerary post after his medical de-categorization and only thereafter the applicant took voluntary retirement due to domestic problems. The applicant submitted another representation on 4.9.2001. The same was also rejected in October 2001. On 27.1.2003, he submitted an application through retired employees' association to General Manager seeking compassionate appointment. As there was no response, another representation was submitted on 28.10.2004. The Chief Personnel Officer called for details from the DRM by his letter dated 29.1.2005 and the DRM submitted details for the purpose of placing the matter before the General Manager. The certificates of the applicant's son were verified and found genuine. The Senior DPO, Nanded Division recommended for providing compassionate appointment to the son of the applicant by his letter dated 17.8.2005 stating that the employee was medically de-categorized between the period 19.4.1999 to 18.1.2000 and sought for voluntary retirement. The Senior DPO for DRM, Nanded approved the recommendation on 18.8.2005. In that letter, it is stated as follows:-

“As per Serial Circular No. 91/ 2004, `compassionate ground appointment may also be considered in favour of wife/ eligible wards of such of the employees who were medically decategorized between the period 29.04.99 and 18.01.2000 and sought voluntary retirement on medical decategorization but were retired after 18.01.2000. Such cases are to be considered and decided personally by the General Manager on individual merits of each case'.

Keeping in view the above guidelines, a proposal in favour of Sri Anil Sukhdev, S/o Sri Sukhdev Dagadoba seeking appointment on compassionate grounds against medical decategorisation, is sent herewith for approval of the General Manager. The proposal has the personal recommendations of the DRM. In this connection, you are requested to communicate the approval of the General Manager for processing the request for appointment against compassionate grounds in favour of Shri Anil Sukhdev at an earliest please.”

3. But, in response to the letter dated 18.8.2005, the Chief Personnel Officer stated that DRM (Personnel), Hyderabad informed that the applicant was medically de-categorized but was absorbed in a supernumerary post from 26.5.99 and took voluntary retirement from service due to domestic reasons from 13.6.2000 and therefore, the request of the applicant for appointment of his son on compassionate grounds is not permissible. This letter was issued from General Manager's office and it was signed by one Shri T. Murahari Rao for `Chief Personnel Officer'.

4. On 31.10.2005, the Senior DPO, Nanded addressed a letter to the GM stating that on further examination of the file, it is noticed that the employee initially sought for voluntary retirement on medical grounds vide his application dated 1.1.2000 and subsequently a letter had been addressed to CCC/ PAU vide letter No. YP.P.11/ELR dated 3.3.2000 to submit unconditional application for voluntary retirement and thereafter the employee submitted an application dated 14.3.2000 for voluntary retirement on ‘domestic troubles’. He further stated in that letter that as the applicant is fulfilling the stipulating conditions laid down in Serial Circular No. 91/ 2004, the applicant's case may please be reconsidered and put up to competent authority for consideration. On 7.12.2005, the applicant also appeared to have submitted a representation for reconsideration of his request for compassionate appointment to his son. In reply to that representation, Shri T. Murahari Rao for `Chief Personnel Officer' by his letter dated 12.12.2005 informed the applicant that as he has been absorbed in a supernumerary post from 26.5.1999, due to medical decategorisation and retired voluntarily from service due to domestic reasons from 13.6.2000, his request for compassionate appointment to his son, is not permissible and that the instructions contained in Serial Circular No. 91/ 2004 are applicable only to those Railway employees who were medically decategorised during the period from 29.4.99 to 18.1.2000 and discharged from service due to medical decategorisation after 18.1.2000 and therefore those instructions are not applicable to the employees who have retired from service voluntarily. This letter does not refer to the Senior DPO's letter dated 31.10.2005 wherein the Senior DPO stated that the applicant is fulfilling the conditions stipulated in Serial Circular No. 91/ 2004.

5. The Ministry of Railways issued letter RBE No. 78/ 2006 dated 14.6.2006 to all the General Managers of Indian Railways on the subject ‘Appointment on compassionate grounds of ward/ spouse of medically de-categorised staff on the Railways’ wherein it is stated that a full Board Meeting decided that compassionate appointment to the wife/ wards/ dependents of partially medically de-categorised staff and who seeks voluntary retirement may be given subject to the condition that the appointment will be given only in the Group `D' categories and only in respect of those who are partially de-categorised at a time when they have at least 5 years or more service left. Thereafter, the applicant, on 8.11.2006 submitted another representation seeking compassionate appointment to his son stating that his son passed BA and he belongs to scheduled caste community and that he is a medically de-categorised employee and he is facing difficulties and therefore his son may be given appointment on compassionate grounds. On 6.2.2007, the Divisional Personnel Officer, Nanded Division addressed a letter to GM (Personnel)/ SCR stating that a proposal in favour of Shri Anil Sukhdev Dagodoba (applicant's son) seeking appointment on compassionate grounds against medical de-categorisation is sent for approval of the General Manager and the said proposal has the personal recommendations of DRM and therefore requested to communicate the approval of the General Manager for processing request for appointment against compassionate grounds in favour of the applicant's son at the earliest. The same T. Murahari Rao `for Chief Personnel Officer' replied stating that it has already been advised vide letter dated 23.9.2005 that Shri Anil Sukhdev is not eligible for appointment on compassionate grounds. It is once again reiterated that DRM (P). Hyderabad stated that the applicant was medically de-categorized, was absorbed in a supernumerary post from 26.5.99 and while working against the supernumerary post, he took voluntary retirement from service due to his domestic reasons from 13.6.2000 and therefore, the request of the applicant for appointment of his son on compassionate grounds is not permissible. On receipt of that letter,. The Divisional Personnel Officer, Nanded Division informed the applicant on 25.4.2007 stating that appointment of his son on compassionate grounds has been regretted as the applicant has been absorbed in a supernumerary post from 26.5.99 and while working as such, he took voluntary retirement due to domestic reasons from 13.6.2000.

6. Aggrieved by the said communication, the applicant filed the present OA contending that the rejection of the applicant's claim is illegal, arbitrary and in violation of the Railway Board's instructions contained in letter dated 18.10.2000, 26.5.2004 and 14.6.2006. The applicant contended that the respondents ought to have seen that the applicant was medically de-categorised on 26.5.99 and he sought voluntary retirement only on that account and that there is no other earning member in the family of the applicant and that in view of the Railway Board's letters dated 26.5.2004 and 14.6.2006, he is eligible to seek compassionate appointment to his son.

7. The respondents contested the application and filed reply admitting that the applicant while working as Goods Driver was found medically unfit on 26.5.99 to work as Goods Driver by Medical Superintendent, Purna. But the respondents pleaded that the applicant was found unfit only for A-I category and found fit for A-III category and hence he was accommodated in a suitable lower medical category post and therefore, in such cases, even if the employee chooses to retire voluntarily, he is not eligible to seek compassionate appointment for his ward as per Serial Circular No. 21/ 2000. It is further pleaded that as per Serial Circular No. 92/ 2006 dated 22.6.2006, the cases which were finalized earlier need not be re-opened and that the applicant's claim had already been rejected and therefore, the applicant cannot rely on the Railway Board's letter dated 14.6.2006 circulated in Serial Circular No. 92/ 2006. The instructions contained in the Serial Circular No. 91/ 2004 dated 26.5.2004 are applicable for those Railway employees who were medically decategorized during the period from 29.4.99 to 18.1.2000 and discharged from service due to medical decategorization after 18.1.2000 and the applicant was advised by CPO/ SCR vide letter dated 12.12.2005 that the three circulars dated 18.10.2000, 26.5.2004 and 14.6.2006 are not applicable to the applicant. It is further pleaded in the reply that in terms of SC No. 21/ 2000, when an employee is medically decategorized, but fit to work in lower medical classification, chooses to retire voluntarily, his wards are not entitled for appointment on compassionate grounds. In the instant case, as the applicant worked in lower medical classification for about nine months, later opted for voluntary retirement on domestic grounds and therefore his son is not entitled to be considered for appointment on compassionate grounds as per SC No. 21/ 2000 dated 11.2.2000 (Railway Board's letter dated 18.1.2000). The respondents pleaded that there is no nexus between the applicant's decategorisation and voluntary retirement and therefore, Serial Circular No. 92/ 2006 is not applicable to the applicant.

8. During the course of hearing, the learned counsel for the applicant reiterated the contentions raised in the application. He submitted that though the applicant is entitled to be considered by the General Manager, as per Railway Board's letter dated 26.5.2004 circulated by the Serial Circular No. 91/ 2004, it was not considered by the General Manager, and it was only the Chief Personnel Officer who rejected the application, to be put up before the General Manager and that Shri T. Murahari Rao who signed for Chief Personnel Officer in the General Manager's office himself took a decision that it is not a case to be considered by the General Manager and that the opinion of Shri T. Murahari Rao is erroneous. He submitted that the Divisional Personnel Officer and also the DRM, Nanded recommended the case of the applicant for consideration by the General Manager specifically stating that as per Serial Circular No. 91/ 2004, the matter is required to be considered by the General Manager. In spite of it, Mr. T. Narahari Rao did not agree and simply rejected on the ground that the applicant did not take voluntary retirement on medical grounds and he took voluntary retirement for domestic reasons after he was provided with a supernumerary post. The learned counsel also relied on the Railway Board's letter dated 14.6.2006 and contended that the conditions mentioned in para 4 (b) are satisfied as the applicant had more than five years' service by the date of partial medical decategorisation and therefore, his case is entitled to be considered by the General Manager. He submitted that the Chief Personnel Officer erred in interpreting the circulars. On the other hand, the learned counsel for the respondents, reiterated the contentions raised in the reply. As the learned counsel for the applicant is mainly relying on the Railway Board's letter dated 26.5.2004 circulated vide Serial Circular No.91/ 2004 dated 21.6.2004 wherein the Railway Board directed the GMs to personally consider compassionate appointment in favour of wife/ ward of such employees who were medically decategorized between the period 29.4.99 and 18.1.2000 and sought voluntary retirement on medical decategorisation and retired after 18.1.2000 based on individual merits of each case, I considered it necessary to verify the manner in which the applicant's case has been dealt with, and directed the counsel for the respondents to produce the entire files relating to the request made by the applicant for compassionate appointment. Accordingly, the learned counsel for the respondents produced the entire file. Only on the basis of the said file, the facts were gathered and narrated in these orders.

9. The points that arise for consideration in this application are:

(i) Whether the applicant took voluntary retirement on account of medical de-categorization?

(ii) If so, whether his request for compassionate appointment is required to be considered in the light of the Serial Circular No. 91/ 2004 dated 21.6.2004?

(iii) Whether the application of the applicant was considered by the General Manager personally as required in Serial Circular No. 91/ 2004?

(iv) Whether the applicant's case is required to be considered in the light of the Railway Board's letter dated 14.6.2006 circulated in the Serial Circular No. 92/ 2006 dated 22.6.2006?

(v) Whether the impugned rejection order is sustainable in law?

(vi) To what result?

10. Point No. (i):

As seen from the files produced by the respondents, while the applicant was working as Goods Driver in Nanded Division, he was directed to undergo periodical medical examination from 22.5.99 to 26.5.99 and in the said medical examination, the applicant was found unfit to work as Goods Driver, i.e. under A-I category but he was found fit for A-III category as per the medical certificate dated 26.5.99. On 1.1.2000, the applicant submitted representation to the Senior DPO, HYB/ SC through the AME, Purna requesting for retirement on medical grounds since he is medically decategorised on 26.5.99. It is useful to extract that letter:

‘Respected Sir,

With ref:- M.S/ Sub. Divisional Rly. Hospital Purna No. 0755/ 99 certificate Physical fitness of Employee of 26.5.99 Periodical- Examination, unfitted for A-I. I am suffering badly from 22.5.99 to till date under medical for correspondence. I request to accept my retirement on medical grounds as per the Rly. Board's L/No.H (NG) III/ 78/ RC-1/1 of 3.9.93 and avoid starvation please.’

But vide letter dated 3.3.2000, DRM (Personnel), Hyderabad advised the applicant to submit unconditional application for voluntary retirement to take further action and then the applicant submitted a letter on 14.3.2000 by adding the words due to domestic troubles while reiterating his request for voluntary retirement as per the earlier representation extracted supra. On 14.5.2000, the DRM, Hyderabad accepted his voluntary retirement from service with effect from 13.6.2000 by his letter dated 4.5.2000. Therefore, it is clear that though the applicant intended to take voluntary retirement on account of his medical decategorisation, the DRM insisted him to give fresh application mentioning only domestic reason for voluntary retirement and under those circumstances, the applicant had to submit another representation dated 14.3.2000 adding the words due to domestic troubles . So, it is clear that the applicant was forced to submit fresh representation changing the reason seeking voluntary retirement, though in fact, he wanted retirement on account of his medical decategorisation. The applicant asserted that he wanted to take voluntary retirement on account of medical decategorisation as not fit for driver post. Obviously, as the applicant was found unfit for the category of post in which he was working and he was decategorised from A-I to A-III, he wanted to take voluntary retirement and submitted his application. Such a retirement cannot be termed as voluntary retirement due to domestic troubles and not on account of medical decategorisation. In my considered view, the applicant's voluntary retirement is to be treated as voluntary retirement on account of medical decategorisation. In fact, the DRM, Nanded in his proposal vide letter dated 18.8.2005 sent to the office of the General Manager categorically stated that the applicant took voluntary retirement on medical decategorisation and his case is covered under Serial Circular No. 91/ 2004. Thus, this point is found in favour of the applicant.

11. Point No. (ii):

It is useful to extract the Serial Circular No. 91/ 2004:

“Copy of Board's letter No. E (NG) II/2000/ RC-1/Gen./17 dated 26.5.04 (RE No. 106/ 04) SC 57 to MC-16

Sub: Compassionate appointment to the Wards of Medically decategorised staff - Relaxation of cut off period.

Ref: Railway Board's letter No. E(NG) II/2000/ RC-1/Gen/17dated 6.3.2002.

In terms of this Ministry's letter under reference, compassionate appointment may be considered in favour of wife/ eligible wards of such of the employees who were medically decategorised between 29.4.99 and 18.1.2000 (both days inclusive) and declared unfit to continue in the posts they were holding but fit to hold posts with lower medical classification, subject to the condition that:-

(i) the employee concerned have retired voluntarily between 29.4.99 and 18.1.2000 (both days inclusive) on medical decategorisation during the period; and

(ii) such cases are personally considered and decided by the General Manager on individual merit of each case.

2. Staff side have represented vide item No. 11/ 2004 in the DC-JCM held in March, 2004 that in many of the cases, though the employees were medically decategorised between the period 29.4.99 and 18.1.2000 and sought voluntary retirement on medical decategorisation but were retired after 18.1.2000, the cases for appointment on compassionate ground of such employees have not been considered by the Railway Administration which is not justified.

3. The matter has been considered by the Board and it has been decided that further to Board's letter under reference, compassionate ground appointment may also be considered in favour of wife/ eligible wards of such of the employees who were medically decategorised between the period 29.4.99 and 18.1.2000 and sought voluntary retirement on medical decategorisation but were retired after 18.1.2000. Such cases are to be considered and decided personally by the General Manager on individual merits of each case.”

It is not disputed that the applicant was medically decategorised from Category-I to Category III between 29.4.99 and 18.1.2000 as mentioned in the first paragraph of the above said circular. As per para 3 of the above said circular, those who are medically decategorised between 29.4.99 and 18.1.2000, but sought voluntary retirement on medical decategorisation and were retired after 18.1.2000, their cases are to be considered and decided personally by the General Manager on individual merits of each case. In the instant case, it is found supra that the applicant's voluntary retirement was on medical decategorisation and he is retired with effect from 13.6.2000. Therefore, his case is to be considered and decided personally by the General Manager on the merits of the case. In his letter dated 18.8.2005, Senior DPO stated in para 2 that the proposal has personal recommendation of the DRM and that the application is covered under Serial Circular No. 91/ 2004. Further, after the Chief Personnel Officer rejected the proposal on the ground that the applicant though medically decategorised, but was absorbed in a supernumerary post, and later took voluntary retirement due to domestic reasons, the Senior DPO, Nanded addressed another letter dated 31.10.2005 to the General Manager stating that on further examination of the file it is noticed that the employee initially sought for voluntary retirement on medical grounds vide his application dated 1.1.2000 and that only at the instance of the department, he submitted another letter dated 3.3.2000 adding due to domestic troubles and that the applicant's case fulfills the conditions stipulated in Serial Circular No. 91/ 2004 and hence the applicant's case may be reconsidered and put up to the competent authority for consideration. But, in spite of it, again, the same Shri T. Murahari Rao, for Chief Personnel Officer addressed letter to the applicant on 12.12.2005 stating that his case cannot be considered as he retired not on medical decategorisation but due to domestic reasons. The Chief Personnel Officer did not refer to the recommendations of the local DRM in his letter dated 18.8.2005 and 31.10.2005. It is the local DRM who is competent to decide about the fact whether the applicant took voluntary retirement due to medical decategorisation or due to domestic reasons.

12. The other reason given by the Chief Personnel Officer is that as the applicant was provided alternative post in A-III category, took voluntary retirement while working in the alternative post, his case is not entitled to be considered for compassionate appointment. But, it is nowhere stated in the Serial Circular No. 91/ 2004 that the persons who took voluntary retirement due to medical decategorisation while working in the alternative post for which he was suitable, are not entitled to make a request for compassionate appointment even after voluntary retirement. The respondents again quoted the circular dated 18.1.2000. As seen from the SC No. 91/ 2004, the staff side has represented against the circular dated 18.1.2000 and basing on such representation, the Railway Board considered and decided that the cases of those who took voluntary retirement on medical decategorisation even after 18.1.2000, are to be considered and decided personally by the General Manager on individual merits of each case. Therefore, the respondents cannot place reliance on circular dated 18.1.2000 to reject the case of the applicant. As long as the fact that the applicant was medically decategorised within the prescribed period mentioned in the circular and he took voluntary retirement thereafter, the reason for taking voluntary retirement is immaterial. Merely because by the date of his taking voluntary retirement he was accommodated in alternative post, it cannot be said that such cases do not cover under SC No. 91/2004. In fact, the Railways had introduced the scheme for safety reasons to encourage drivers who are likely to cross 55 years of age, to take voluntary retirement by way of offering appointments to their wards as an incentive. Here in the instant case, the applicant was a Goods Driver and he had more than five years of service left by the date of his medical decategorisation. Therefore, it is ununderstandable as to why the Chief Personnel Officer has taken a negative attitude to reject the case of the applicant in spite of the recommendations made by the local DRM. In my considered view, the DRM rightly stated in his letter dated 13.10.2005, that the case of the applicant is covered under SC No. 91/2004 and therefore, the applicant's case is to be considered personally by the General Manager as stipulated by the Railway Board in the said circular No.91/ 2004. Hence, I agree with the DRM's views in this regard and I disagree with the opinion of the Chief Personnel Officer that the case of the applicant is not covered under SC No. 91/ 2004. Thus, this point is found in favour of the applicant.

13. Point No. (iii):

As seen from the orders issued by Shri T. Murahari Rao, who signed for Chief Personnel Officer, it is nowhere stated that the General Manager considered the merits of the applicant's case personally and then rejected the case. As seen from the SC No. 91/ 2004, the General Manager has to personally consider the merits of the case and decide it on merits. The impugned order clearly goes to show that the merits of the applicant's case were not placed before the General Manager and the General Manager did not consider the merits of the case and decide the matter. On the other hand, the case of the applicant was rejected on the ground that it is not covered under SC No. 91/2004, and on technical grounds that the applicant did not take voluntary retirement on medical decategorisation and he took retirement after he was provided alternative appointment. As per SC No. 91/ 2004, the merits of the case, viz. financial condition of the family and the number of dependents in the family, etc. are to be considered by the General Manager personally and then take a decision. In fact, the DRM in his letter dated 13.10.2005 specifically pointed out that the matter is to be placed before the General Manager for personal consideration. But yet, the Chief Personnel Officer did not do so. Hence, in my considered view, the case of the applicant was not considered by the General Manager personally as required in SC No. 91/ 2004. Thus, this point is found in favour of the applicant.

14. Point No. (iv):

As seen from the circular dated 14.6.2006, all those employees who are medically decategorised after issuance of Railway Board's letter dated 18.1.2000 will also be considered under these instructions. But the respondents are relying on the following averment made in the circular:

However, such cases which have already been finalised in terms of Board's letters No. E (NG) II/95/ RC-1/94 dated 18.1.2000; 10.11.2000 and No. E (NG) II/ 2000/ RC-1/ Genl./17 dated 6.3.2002 and 26.5.2004 need not be re-opened.

As seen from the SC No. 91/2004, there is no such averment to the effect that the cases finalised in pursuance of Railway Board's letter dated 18.1.2000, cannot be re-opened. On the other hand, SC No. 91/ 2004 was issued as the staff made representations against the instructions contained in Board's letter dated 18.1.2000 and the Railway Board has decided to consider cases rejected under the Railway Board's letter dated 18.1.2000 also, provided that such cases shall be considered and decided by the General Manager personally on the merits of each case. Regarding Railway Board's letter dated 26.5.2004 circulated in SC No. 91/ 2004, the applicant's case has not been considered and decided by the General Manager and therefore, it cannot be said that the applicant's case has been finalised in order to exclude the same from the purview of the latest circular dated 14.6.2006. As seen from para 4 of the letter dated 14.6.2006, the Full Board Meeting has decided that the compassionate appointment made to the dependents of partially decategorised employees who seek voluntary retirement, be given subject to the condition that the appointment shall be given only in Group-D and it should only be given in cases of employees who are declared partially decategorised at a time when they have at least five years or more service left. In the instant case, admittedly, the applicant was partially decategorised on 29.5.99. As seen from the service certificate of the applicant, his date of birth is 5.9.1945. So, by the date of medically partially decategorisation, the applicant's age was only 54 and therefore, six more years' service was left to him. Even by the date of voluntary retirement with effect from 13.6.2000, he had more than five years' service left. This letter was issued in supersession of para 4 of Railway Board's letter dated 18.1.2000 wherein it is stated that if the employee chooses to retire voluntarily on his being medically decategorised, if he so desires, he may be permitted, but without extending the benefit of compassionate appointment to his ward. The Railway Board has decided not only totally incapacitated employees, but also partially medically decategorised employees to provide compassionate appointment for their wards provided they had five more years' service left by the date of partial decategorization. Therefore, the applicant is entitled to be considered even under the Railway Board's letter dated 13.6.2006. Thus, this point is also found in favour of the applicant.

15. Point No. (v):

In view of the findings on points (i) to (iv), I have no hesitation to hold that the impugned order of rejection is not sustainable in law and it is liable to be set aside. The General Manager is required to be directed to consider the case of the applicant personally and take a decision on the merits of the case taking into consideration the recommendations made by the local DRM, Nanded under whom the applicant was working by the date of his medical decategorisation. Thus, this point is also found in favour of the applicant.

16. Point No. (vi):

In the result, the application is allowed and the impugned order dated 25.4.2007 passed by R-3 is set aside and the first respondent, General Manager is directed to personally consider the request made by the applicant for compassionate appointment to his son and take a decision keeping in view the recommendations made by the local DRM under whom the applicant was working at the time of his medical decategorisation. In the circumstances, no order as to costs.