The relevant date for deciding which scheme will govern the case for compassionate appointment is the date of making the application for compassionate appointment and not the date of death of the employee.

1. Heard learned counsel for the petitioners and learned counsel for the Railways.

2. The relevant facts lie within a narrow compass. Under a circular dated 16.5.1991 the Railways introduced a scheme for compassionate appointment which included for consideration of case of a near relative of the deceased employee dying in harness. The circular is available as annexure-1 and provides that in case an employee dies in harness leaving behind only a widow and no children then appointment of a near relative may be considered in case of hardship and on merits of each case. The husband of petitioner no. 1, Kailash Singh expired on 3.12.1995 while he was a permanent employee of the Eastern Railway now the East Central Railway. The claim was advanced for appointment of a nephew of deceased Kailash Singh which was in the first instance rejected by a non speaking order dated 19.3.1997 and when that order was set aside by the Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as the Tribunal) in O.A. No. 155/2000 and matter was remanded, by another order dated 12.8.2002 which is a speaking order available on record as Annexure-8. That order was challenged by the petitioners before the learned Tribunal through O.A. No. 784/2002 which has been dismissed by the impugned order dated 1.12.2004 contained in Annexure-9.

3. A perusal of Annexure-8, which is the reasoned order passed by the authorities of the Railways, shows that the claim for compassionate appointment has been rejected on two grounds. After considering the monetary benefits which the widow received as well as her monthly pension the authorities did not find that it was a case of hardship and hence, on merits the claim was rejected. However, it was also rejected on an additional ground that there is no provision for compassionate appointment to the near relative of a deceased employee except widow/son/daughter as per new scheme for compassionate appointment contained in Railway Boards letter dated 13.12.1995. The learned Tribunal considered the case of the parties on 1.12.2004 and by the impugned order dismissed the O.A. preferred by the petitioners after holding that the claim for compassionate appointment was actually made only on 22.2.1996 when the Railway Boards letter dated 13.12.1995 was in force and hence, as a near relation or nephew the petitioners could not claim right for compassionate appointment. From the discussions made in the impugned order it is clear that the Tribunal considered the issue which circular would be applicable and held that the subsequent scheme dated 13.12.1995 only could be applied because the application was made after that date on 22.2.1996.

4. This writ petition was initially dismissed in limine by a Division Bench of this court on 15.2.2005. The petitioners preferred Special Leave Petition giving rise to Civil Appeal No. 3581/2009 before the Apex Court, That appeal was allowed in terms indicated in the judgment and order dated 15.5.2009. In that order the Apex Court did not interfere with the findings of fact but remitted the matter to this court for deciding the issue as to which scheme pertaining to compassionate appointment should be held applicable, the one prevailing at the time of death of the employee or the one prevailing when the application for compassionate appointment was filed.

5. On hearing the parties arid going through the schemes for compassionate appointment both under circular dated 16.5.1991 and under decision of the Railway Board dated 13.12.1995, it is found that under the schemes no right accrues to any person on mere death of railway employee in harness. The only right is of consideration of a claim for compassionate appointment if it is lodged by the eligible person as per terms of the scheme. Thus, the right of consideration is a contingent right dependant upon filing of an application. If the dependant wife or other heirs choose not to file any application for compassionate appointmen