JUDGMENT

D.K. Jain, J.

1. This appeal, by grant of special leave, is directed against the judgment dated 1st September, 2003 delivered by the High Court of Judicature at Allahabad at Lucknow, whereby the writ petition filed by the Appellant herein, seeking compassionate appointment, has been dismissed on the ground that he did not fulfil the conditions envisaged in the Railway Board Circular dated 29th November, 2001.

2. Appellant's father, Mr. Prahladji Sonkar, was posted as a Guard Mail/Express, North Eastern Railway at the Lucknow Junction. Respondent No. 2 viz. the Senior Divisional Karmik Adhikari, North Eastern Railway (N.E.R.), Lucknow directed the Appellant's father to appear before the Medical Board for a medical examination. 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 effect.

4. At this juncture, it would be relevant to note that an appointment on compassionate ground in the Railways was governed by Railway Board Circular dated 22nd September, 1995 which provided that:

1. In terms of the instructions contained in para I(iv) of Board's letter No. E(NG)III/78/RC-1/1 dated 07.04.1983 and 03.09.1983, appointment on compassionate grounds is permissible where a Railway employee becomes medically decategorised for the job he is holding and no alternative job with the same employee is but it is not accepted by the employee and he chooses to retire from service.

2. The question whether appointment on compassionate ground can be considered in the case of a medically decategorised employee who does not wait for the Administration to identify an alternative job for him but chooses to retire under consideration of the Board.

3. After careful consideration of the matter, Board have decided that in partial modification of Board's letter No. E(NG)III/78/RC-1/1 dated 03.09.1983, in the case of medically decategorised employee, compassionate appointment of an eligible ward may be considered also in cases where the employee concerned does not wait for the administration to identify an alternative job for him but chooses to retire and makes a request for (sic) such appointment.

5. It is also pertinent to mention here that on 29th April, 1999, the Railway Board issued a circular stating, inter alia, that in light of the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, employees who become incapacitated from holding the post they were currently holding, but found eligible for retention in service in posts corresponding to lower medical category, shall be offered alternative employment in the posts for which they are found suitable.

6. Appellant's father moved an application dated 1st September, 1999, before Respondent No. 2 requesting that his son be given compassionate appointment as a Class IV employee. Since there was no response to the said request, the father of the App