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TMI Blog2011 (3) TMI 1750X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, Appellant's father appeared before the Medical Board and was declared medically unfit in A2, A3, B1 and B2 categories vide certificate dated 6th March, 1998. However, he was found fit in C1 and C2 categories and was directed to appear for another medical examination after six months. 3. Accordingly, Appellant's father again appeared for a medical examination and vide certificate dated 13th July, 1999, he was declared medically unfit as de-categorized employee. Nevertheless, he was found fit in category B1 and below. Thereafter, on 9th August, 1999, Appellant's father appeared before the Standing Committee which decided to retire him without offering him any alternate employment, as stipulated in the service rules. Ultimately, Appellant's father was retired from service vide retirement order dated 30th August, 1999 issued by Respondent No. 3 viz. Divisional Railways Manager (Karmik), Lucknow, which stated that: Shri Prahlad Ji Sonkar, Guard Mail/Express in the pay scale of (5500-9000) at Lucknow Junction who having been declared as decategorised employee has been recommended by the standing committee for retirement, is retired with immediate effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work in a lower category, any request for giving compassionate employment to such employee's ward would not be considered if the employee opts for voluntary retirement after being de-categorized. 7. Thereafter, on 29th November, 2001, the General Manager (Personnel), Gorakhpur issued a letter stating that in case of employees who opted for voluntary retirement after 29th April, 1999, the cases of wards of only totally incapacitated employees would be considered for appointment on compassionate grounds. In pursuance of the same, Respondent No. 3 issued a letter dated 15th February, 2002 to Appellant's father stating that the application for appointment of his son on compassionate ground was not found fit for consideration by the competent authority. 8. Being aggrieved, the Appellant preferred an Original Application before the Central Administrative Tribunal, Lucknow (for short the Tribunal ). 9. Vide order dated 31st December, 2002, the Tribunal dismissed the Original Application, observing thus: I have considered the facts of the case and submissions made on behalf of the parties, and I am of the view that the O.A. deserves to be dismissed on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s plea that his father was forced to retire. 15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. We do not propose to burden this judgment with reference to a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefore viz. that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right. (See also: General Manager, State Bank of India and Ors. v. Anju Jain (2008) 8 SCC 475 18. In V. Sivamurthy v. State of Andhra Pradesh and Ors . (2008) 13 SCC 730 this Court while observing that although appointment in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution, yet appointments on compassionate grounds are well rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th April, 1999. 21. The circular/letter dated 29th November, 2001, on which reliance was placed while rejecting Appellant's claim has to be understood in its correct perspective. Evidently, it seeks to limit the benefit of compassionate employment to only those incapacitated employees who had been retired after 29th April, 1999, as in case of employees who were found fit for performing services in a lower category, Circular dated 29th April, 1999 would be applicable, and the Railways was bound to offer alternative employment to such employees. It flows therefrom that after 29th April 1999, those employees who did not accept the alternative employment, and opted for voluntary retirement could not be given the benefit of compassionate employment for their wards. 22. In the instant case, the Respondents have not placed any material on record to establish that the Appellant's father was offered any alternative employment in terms of Circular dated 29th April, 1999. On the contrary, it appears that the Standing Committee recommended his retirement. Having denied Appellant's father the benefit of Circular dated 29th April 1999, the Respondents cannot claim that Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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