Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.   3581            OF 2009   (Arising out of SLP (C) No. 16263 of 2006)

Maharani Devi & Anr. …. Appellants

Versus

Union of India & Ors. …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Appellant No.1 is the widow of one Shri Kailash Singh who was working  

as Storeman under the Eastern Railways, Bihar while the appellant No.2 is his  

nephew.  The said Kailash Singh expired on 03.12.1995.  He was a permanent  

employee of  the Eastern Railways,  now the East  Central  Railways.   He died  

issueless.  As per the claim of the appellants, appellant No.1 who is a helpless  

widow, after the death of her husband, the application came to be submitted on  

05.12.1995  for  compassionate  appointment  before  the  Divisional  Railway  

Manager, Danapur (second respondent) in favour of the second appellant since  

the  late  Kailash  Singh  died  issueless  and  in  case  of  the  employee  dying  

issueless his near relative could get the compassionate appointment on the basis  

of a circular No. E(NG)111/88/RC-111 dated 16.05.1991; RBE 102/91.   

3. Unfortunately for her, on 13.12.1995, the Railway Board, by its order, took  

a policy decision and introduced an amendment to the above mentioned Circular  

dated 16.05.1991 deleting the provision of providing compassionate appointment  

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to the near relative.  This decision was circulated by a Circular dated 22.12.1995.  

It must be added here that the Circular was not retrospective.

4. Since  the  application  made  by  her  was  not  responded  to,  another  

representation was made on 29.02.1996 for compassionate appointment for the  

second  appellant.   By  order  dated  19.03.1997,  this  application  came  to  be  

rejected  without  giving  any  reasons.   One  more  representation  was  made  

through Shri Sushil Kumar Modi, Leader of the Opposition in Bihar Assembly by  

his  letter  No.  1424  dated  06.10.1999  addressed  to  the  Minister  of  State  for  

Railways.  However, even he was informed that there was no provision to employ  

near  relative on compassionate ground and accordingly the competent  officer  

had  rejected  her  representation.   The  appellants,  therefore,  filed  an  original  

application  before  the  Central  Administrative  Tribunal,  Patna  Bench,  Patna  

(hereinafter  called  ‘the  Tribunal’).   It  was  pointed  out  that  there  was  a  

communication by the Railway Board bearing No.  E(NG) 11/88-RC-1/1 dated  

12.02.1990 which provided that if an employee dies in harness leaving a widow  

without children, the appointment of a near relative could be considered in case  

of hardship and on merits of each case.  Relying on this circular the claim of the  

appellants was pressed.  It was pointed that this circular was not considered by  

the authorities.  It was then pointed out that the further circular dated 16.05.1991  

referred to earlier in this judgment was also not considered.  It was claimed that  

the  subsequent  order  of  the  Railway  Board  dated  13.12.1995  holding  the  

provision  of  appointment  of  near  relative  on  compassionate  ground  was  not  

applicable to the present case as it was not retrospective in effect.  In short, it  

was claimed that since the husband of appellant No.1 died on 03.12.1995 during  

the previous order of the Railway Board when appointment of a near relative was  

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permitted there was no reason to deny the appointment in favour of the second  

appellant.  The respondent Railways pointed out that the decision to delete the  

provision of appointment of a near relative which was taken on 13.12.1995 was  

based on the basis of Office Memorandum of the Ministry of Personnel, Public  

Grievances  and  Pensions  (Department  of  Personnel  and  Training)  dated  

09.12.1993 and, therefore, the subsequent  death of  the husband of  appellant  

No.1 on 03.12.1995 was of no consequence.  It was further pointed out that the  

Department  of  Personnel  Training,  Government  of  India  was  the  nodal  

Department  and  all  the  matters  relating  to  Government  service  were  to  be  

implemented through the same agency.  Reliance was also put on the judgment  

of the Supreme Court in Auditor General of India v. G. Ananta Rajeswara Rao  

1994 ( 1 )  SCC  192 and, therefore, the appellant was not entitled to any relief.   

5. The Tribunal took the view that whatever be the case, the respondent had  

not passed a speaking order nor had it considered the merits of the matter.  The  

Tribunal,  therefore,  directed the respondents to re-consider the representation  

and the aspect of dependency of the appellant No. 1 on appellant No.2. They  

were further directed to consider the relevancy of the order of the Railway Board  

dated 13.12.1995 as the deceased employee had died in harness prior to the  

date of issue of that order of the Railway Board and further whether the order  

could be applied retrospectively.  Time limit of four months was also set up by the  

Tribunal  for  disposal  of  the  representation.   However,  on  12.08.2002  the  

respondent again rejected the claim of the petitioner.  This time in their order the  

respondents pointed that the appellant No.1 had received the family pension of  

Rs. 1,04,658/- on account of death of her husband.  It was held that the provision  

of  extending  the  compassionate  appointment  was only  to  help  the family  left  

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behind by the employee and further there was no provision for compassionate  

appointment  to  the  near  relative  under  the  order  dated  13.12.1995.   It  was  

reiterated that in view of the handsome amount that she had received after the  

death of her husband the appellant No.1 was not entitled for the appointment of  

the second appellant.   The appellants  again approached the Tribunal,  Patna.  

Two  questions  were  formulated  by  the  Tribunal.   They  were:-  whether  the  

request of the appellant No. 1 for appointment of appellant No.2 was required to  

be considered on the basis of the Notification dated 16.05.1991 or in the light of  

the  order  dated  13.12.1995  the  second  question  was  as  to  whether  the  

respondent authorities were right in rejecting the request of the appellant on the  

ground that the appellant No.1 had received over a lakh rupees as service dues  

of  the  deceased husband and she  was also  getting  reasonable  pension  and  

whether it can be said that she was not suffering from financial or other hardship.

6. On  the  first  question,  the  Tribunal  took  the  view  that  provision  of  

compassionate appointment was a mere social welfare measure and the object  

of  the same was not  simply  to  give  employment  to  a  near  relative.   On this  

question, the Tribunal considered the Full Bench decision of Patna High Court in  

Project Uccha Vidyalaya Shikshak Sangh v. State reported in 2001 (1) PLJR  

287.  The Tribunal held that the decision did not apply to the facts of the case of  

the appellants.   The Tribunal,  however,  expressed that  the Office Circular  on  

which the appellant had relied and which was in force on the date of death of  

Kailash Singh was not available at the time of submission of application on which  

date the amended circular was in force. The Tribunal did not accept the case that  

the  first  representation  was  made  on  05.12.1995.   The  Tribunal  treated  the  

second representation dated 29.02.1996 to be the first representation and further  

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came to hold that since on that date the amended circular dated 13.12.1995 was  

in force only the amended Circular would be applicable to the facts of the case  

and as such the appellants would not  be entitled to any relief.   In short,  the  

Tribunal held that the relevant date would not be the date of the death of the  

employee but the date on which the representation was made.  

7. On the first question, therefore, the Tribunal found the case against the  

appellants.  On the second question, however, the Tribunal relying on  Pankaj  

Kumar V. Union of India decided on 24.08.2000 held that the employment on  

compassionate grounds could not be denied on the ground of financial service  

benefits received by the widow and children of the deceased Government were  

sufficient to meet their needs.  In support of this proposition, the Tribunal relied  

on the decision of Balbir Kaur & Ors. v. Steel Authority of India AIR 2000 SC   

1906.

8. The appellants filed a writ petition before the Patna High Court.  However,  

the same came to be dismissed  in  limine and that is  how the appellants are  

before us in this appeal.

9. On the  basis  of  the contentions  raised  by the  learned counsel  for  the  

appellants and the learned senior  counsel  Shri  Harish Chandra appearing on  

behalf of the respondent which falls for our consideration is as to which is the  

relevant dated for deciding the claim of the appellants whether it is the date on  

which the husband of the appellant No.1 died i.e, 03.12.1995 or whether it is the  

date on which the representation was made i.e. 22.12.1995 when the amended  

Circular was enforced depriving any relative from getting any appointment on  

compassionate ground.

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10. It  was  urged  that  the  Tribunal  was  not  right  in  holding  that  the  first  

representation was not made on 05.12.1995 but was made later on 29.02.1996.  

We will not go into that question since it amounts to a question of fact.  However,  

the basic question still remains as to which is the relevant date as to the right for  

being considered for  compassionate  appointment  accrues  on the  date  of  the  

death of the concerned employee or it is to be considered on the date when the  

application for compassionate appointment is made.

11. We do not  find any discussion about  this in  the High Court  order  and  

indeed there could not have been none since the writ petition was dismissed in  

limine.   

12. The learned counsel for the appellants relied on the judgment of this Court  

reported in Chairman Railway Board & Ors. v.  C.R. Rangadhamaiah & Ors.  

1997 (6) SCC 623 which is a Constitution Bench decision.   This was a case  

wherein the validity of the same Notification issued by the Railways under Article  

309  amending  Rule  2544  of  Indian  Railway  Establishment  Board  with  

retrospective effect was under consideration.  By that amendment the pension  

conditions of the employees who had already retired on the date of Notification  

was adversely affected.   The Court  held  that  in  the circumstances,  the rules  

could  not  have  been  amended  retrospectively  affecting  the  rights  of  the  

employees.  The  Court,  however,  held  that  on  the  date  when  the  said  

retrospective  amendments  were  introduced  Article  19(1)(f)  and  Article  31(1)  

were available in the Constitution of India.  The Court held that, therefore, the  

right of property of the petitioner was breached by the impugned retrospective  

circulars.  Further in cutting down the pension by bringing in the amendments to  

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the provisions retrospectively  would  be invalid,  breaching Articles  14 and 16.  

Relying heavily on this judgment the learned counsel suggests that at least in the  

aforementioned case, the amendments were retrospective while in the present  

case they were not  retrospective  and,  therefore,  the amended Circular  dated  

13.12.1995 would not  be applicable.   The further argument is that  under any  

circumstance the right for being considered for compassionate appointment had  

accrued on the date of death of the employee that being the only relevant date.  

According to the learned counsel the date on which the representation was made  

was irrelevant.   

13. As against this the learned senior counsel Shri Harish Chandra urged that  

the  most  relevant  date  would  only  be  when  the  representation  was  made  

because the Railway Board had to consider as to whether the appellants were  

indigent on the date when the application was made.

14. On  this  crucial  question,  however,  there  is  the  High  Court  has  not  

expressed any opinion.  It has merely approved of the judgment of the Tribunal.  

Learned senior  counsel  in  support  of  his  argument  relied on the judgment  in  

State Bank of India & Ors. v. Jaspal Kaur reported in 2007 (9) SCC 571.  

However, we do not find any similarity in the situation appearing in this case and  

the  one  decided  by  this  Court.   The  reported  decision  only  considered  the  

question as to which scheme pertaining to compassionate appointment should  

be preferred - whether it should be the scheme prevailing at the time when the  

application  for  compassionate  appointment  was  filed  or  the  one  which  was  

available on the date of decision of the Court.  

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15. Such question is not  for  our consideration in the present  matter.   That  

decision  is,  therefore,  of  no  use  for  learned  counsel  for  the  respondents.  

However, in our view the question posed by us as to what would be the relevant  

date for  consideration,  whether it  would be the date of death of employee or  

whether it would be the date of making the representation? That has not been  

considered by the High Court.   We, therefore, remand this matter to the High  

Court with a request to the High Court to decide the same.  We request the High  

Court to dispose of the matter within six months of the writ reaching the High  

Court as the matter pertains to the rights of a poor widow.  The appeal is allowed  

in the terms stated by us with no orders as to the costs.

      ………………………J. [ Tarun Chatterjee ]

…………………….J. [ V.S. Sirpurkar ]

New Delhi; May 15, 2009.

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Digital Performa

Case  No.  : CIVIL APPEAL NO.                OF 2009      (Arising out of SLP (C) No. 16263 of 2006)

Date of Decision : 15.05.2009

Cause Title :  Maharani Devi & Anr. Versus

Union of India & Ors.

Coram :   Hon’ble Mr. Justice Tarun Chatterjee Hon’ble Mr. Justice V.S. Sirpurkar

C.A.V. On : 30.4.2009

Judgment delivered by : Hon’ble Mr. Justice V.S. Sirpurkar

Nature of Judgment :  Reportable

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