IMPORTANT POINT
The High Court, instead of dismissing the petition in limine ought to decide the question of law as to what is the relevant date for compassionate appointment : date of death of the employee or date of making application.

Judgment :-

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 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 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 h