MATHUR, J. - (1.) THE instant writ petition under Article 226 of the Constitution of India has been preferred by the Union of India seeking direction to quash the judgment of the Central Administrative Tribunal, Jodhpur Bench, Jodhpur dated 06. 12. 2001 whereby it allowed the Original Application of the second respondent Kumari Prabha Joshi and directed the petitioner to consider her application for appointment on compassionate ground.
(2.) TWO brothers namely deceased Gopal Lal Joshi and Shyamlal Joshi were working with Railways. Gopal Lal Joshi who was working on the post of Gateman at Nawa Railway Station in district Nagaur expired on 21. 10. 1994. The second respondent Kumar Prabha Joshi, moved an application in the year 1999 claiming herself to be an adopted daughter of her uncle deceased Gopal Lal Joshi for appointment on compassionate ground. The competent authority ordered an enquiry into the matter. The Enquiry Officer submitted the report which reveal that natural father of the girl was working as Booking Supervisor in Railways and up till death of Gopal Lal Joshi, Shyam Lal Joshi took all ]the privilege passes for his family alongwith Kumari Prabha Joshi, whereas, deceased Gopal Lal Joshi took privileges passes for himself only till 16. 06. 1994. The adoption deed alleged to have been executed on 09. 06. 1994. It was also found that Kumari Prabha Joshi was residing with her natural father. She never stayed with deceased Gopal Lal Joshi. Thus, the application for compassionate appointment was rejected and the decision was commentated by letter dated 29. 08. 2000. The second respondent aggrieved of the order of the Railway Administration, preferred an Original Application before the Central Administrative Tribunal. The Tribunal allowed the original application and directed to consider the case of Kumari Prabha Joshi for appointment on compassionate ground. We have heard Mr. Manoj Bhandari, learned counsel for the Railway Administration and Mr. S. K. Malik, learned counsel for the second respondent. Having read the judgment of the Tribunal, we are of the view that it is not sustainable for the reason that it is contrary to the view taken by the Apex Court in catena of decisions. The consistent view of the Apex Court and this Court is that the appointment on compassionate ground is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. The latest decision in this line is Sanjay Kumar vs. State of Bihar and Others (1 ). In State of U. P. and Others vs. Paras Nath (2), the employee expired in the year 1969. In the year 1996, the son of the deceased moved an application for appointment on compassionate ground. it was averred that at the time of death of his father, he was only two year old. On attaining majority, he again moved an application for appointment on compassionate ground. The department rejected the application. However, the High Court granted the relief, but the Supreme Court set aside the order the High Court and observed that the purpose for providing the employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. The Court further observed that the purpose is to provide immediate financial assistance to the family of a deceased government servant. The Court relief on its earlier decision in Union of India vs. Bhagwan Singh In the said case the Court observed, "the reason for making compassionate appointment which is exceptional, is to provide immediate financial assistance to the family of a government servant who dies in harness, when there is no other earning member in the family. " The learned counsel has placed reliance on the decision of the Apex Court in Balbir Karu and Another vs. Steel Authority of India Ltd. & Others It was a case of Family Benefit Scheme and not of compassionate appointment, as such, it does not advance the case of the second respondent. The learned counsel has also relied upon a circular of the Railway Board with respect to the appointment on compassionate ground which reads as follows:- " 104. Sub:- Appointment on Compassionate Grounds- Delegation of Powers. Ref:- (1) Board's letter No. E (NG)II/84/rc-1/26 dt. 6. 10. 95. (2) Board's letter No. E (NG)II/99?rc-1/gen/23 dt. 30. 11. 99. Attention is invited to Board's letter No. E (NG)II/84/rc- 1/26 dt. 6. 10. 95 in terms of which the GMs are empowered to consider time barred cases which are upto 20 years old from the date of death of the Railway employee, provided appointment is sought for the first son/first daughter of the Railway employee, provided appointment is sought for the first son/first daughter and that application for appointment is submitted within 2 years of attaining the age of majority by the candidate. These powers have since been redelegated to DRMs/cwms/hods vide board's letter dated 30. 11. 99. 2. The matter has been further considered by the Board and it has been decided that the General Managers may also be authorised to consider the requests of compassionate appointments in respect of cases up to 20 years old in the following types of cases subject to the condition that these powers will be exercise by him personally and not be delegated further:- i) Compassionate appointment of first son/first daughter where request has been made after a period of 5 years from the date of medical invalidation. ii) Compassionate appointment of other than first son/first daughter where request has been made after a period of 5 years from the date of death. iii) Consideration of application submitted more than 2 years after the candidates became major. 3. While considering such requests for compassionate appointment, the General manager should satisfy himself on the basis of a balanced and objective assessment of the financial condition of the family, that the grounds for compassionate appointment in each such case is justified, having regard to the number of dependents, assets and liabilities left by the Railway employee, income of any member of the family, as also his liability, including the aspect of whether the earning member is residing with the family of the deceased employee and whether he provides any support to the other members of the family, so that the facility of appointment on compassionate grounds is not circumvented or misused by putting forward the ground that the eldest son of the employee is staying separately and not supporting the family. The appointment on compassionate ground makes a departure from the general provisions providing for the appointment on the post by following a particular procedure. The doctrine of equality before law and equal opportunity in the matter of employment, enshrined under Article 14 and 16 of the Constitution of India demand appointment in public service strictly on the basis of open invitation of application and merit. Any rule providing appointment in violation of the doctrine of equality is ultra vires and not required to be followed, except in exceptional cases, on strict construction of the rule of circular, only to meet a contingency at a particular moment. Thus, a public authority or court of tribunal while considering a case for appointment on compassionate ground in public service should keep in mind that such an appointment being exception to the general rule, they need not be extra benevolent for an individual, at the cost of thousands of the meritorious unemployed youth.
(3.) IN Umesh Kumar Nagpal vs. State of Haryana and Others (5), the Apex Court has held that the public services on compassionate ground has been carved out as an exception in the interest of justice to the general rule that appointment in the public service should be made strictly on the merit and no other made of appointment nor any other consideration is permissible. The Court further held that a compassionate appointment is made out of humanitarian consideration with a view to provide livelihood to the family of the deceased so that they are able to make both ends meet. The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. Thus, the Railway Board's circular, referred to above, which empowers the authority to give appointment even after 20 years of the death of employee is contrary to the general provision providing appointment, to the extent to travels beyond providing appointment to a member of the family of the deceased to tide over the sudden crisis, such appointment interferes with the right of other persons who are eligible for appointment to seek employment against the post which may be made available to them. The Apex Court in Director of Education (Secondary) and Another vs. Pushpendra Kumar and Others (6), dealing with such a situation observed:- " On such a construction, the said provision in the Regulations would be open to challenge on the ground of being violative of the right to equality in the matter of employment inasmuch as other persons who are eligible for appointment and who may be more meritorious than the dependents of deceased employees would be deprived of their right of being considered for such appointment under the rules:- Thus, the circular relied upon by the second respondent unduly interferes with the right of other persons who are eligible for appointment, is arbitrary and discriminatory to the extent indicated above. Thus, we are of the view that the Central Administrative Tribunal, Jodhpur has committed serious illegality in adopting a very generous, general and casual approach and thereby issuing directions to the appellant to consider the case of the respondent for appointment on compassionate ground. ;