# U.O.I. & Ors v. Sri Santosh Kumar & Anr

- **Citation:** (2025) 2 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-18
- **Case number:** Writ-A No. 1977 of 2025
- **Bench:** Attau Rahman Masoodi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-o-i-ors-v-sri-santosh-kumar-anr-53000
- **Pages:** 5

## Headnote

Law
-
Compassionate
appointment - Relaxation in qualification
- Master Circular No. 16 and Office
Memorandum
dated
11.12.2009
-
Entitlement of sole child after successive
death of the parent - Railway claimed that
relaxation can be granted only to the
widow not to the rest dependent -
Permissibility
-
Held,
the
provision
contained in the Master Circular issued by
the Railway Board is applicable to all
persons
who
were
dependent
on
a
deceased employee and that is not limited
in its application to the widows of the
deceased employees - High Court found
442 INDIAN LAW REPORTS ALLAHABAD SERIES
the facts of the case prima facie making
exceptional circumstances, which ought to
have been taken into consideration while
considering his claim for compassionate
appointment by granting relaxation of
education qualification in view of the
aforesaid provisions contained in the
Office Memorandum dated 11.12.2009.
(Para 17 and 18)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

2 All. U.O.I. & Ors. Vs. Sri Santosh Kumar & Anr.
441
service would be warranted in the case or
even in cases where prosecution is
contemplated or has been launched
against the railway servant. The only
rider in such a condition is that it would
require the approval of the Minister in
charge in regard to Group 'A' & 'B'
railway servants and that of the General
Manager in the cases of Group 'C' & 'D'
railway servants. The acceptance of a
request for voluntary retirement shall be
presumed and the retirement shall be
effective in terms of the notice, unless the
competent authority issues an order to the
contrary, before the expiry of the period
of notice.

17. The Master Circular No. 35 does
not provide that the request of voluntary
retirement of a person who has been
awarded a minor punishment, cannot be
accepted.

18.
The
respondent
has
sought
voluntary retirement on the ground that he
is not keeping good health. Previously, two
charge-sheets were issued to him for his
unauthorized absence from duty. On
18.02.2020,
two
separate
punishment
orders were passed for negligence in
performance of duties. One order imposed
the
punishment
of
withholding
of
increment for one year without cumulative
effect and the other order punished him
with withholding of increment for one year
and 2 months without cumulative effect.
Apparently, the respondent has already
been punished for his unauthorized absence
from duty and that punishment does not
provided that the periods during which the
opposite party remained absent, shall not be
counted in his service or that he shall not be
paid salary for those periods. In these
circumstances,
no
other
adverse
consequence will follow due to the
respondent's absence for the aforesaid
period.

19.
In
view
of
the
foregoing
discussion, we are of the considered
opinion that there is no illegality in the
impugned orders passed by the Central
Administrative
Tribunal
allowing
the
original application filed by the respondent.
The Writ Petition lacks merit and the same
is hereby dismissed at the admission stage.
----------
(2025) 2 ILRA 441
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2025

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 1977 of 2025

U.O.I. & Ors. ...Petitioners
Versus
Sri Santosh Kumar & Anr. ...Respondents

Counsel for the Petitioners:
Vinay Tripathi

Counsel for the Respondents:

A.
Service
Law
-
Compassionate
appointment - Relaxation in qualification
- Master Circular No. 16 and Office
Memorandum
dated
11.12.2009
-
Entitlement of sole child after successive
death of the parent - Railway claimed that
relaxation can be granted only to the
widow not to the rest dependent -
Permissibility
-
Held,
the
provision
contained in the Master Circular issued by
the Railway Board is applicable to all
persons
who
were
dependent
on
a
deceased employee and that is not limited
in its application to the widows of the
deceased employees - High Court found
442 INDIAN LAW REPORTS ALLAHABAD SERIES
the facts of the case prima facie making
exceptional circumstances, which ought to
have been taken into consideration while
considering his claim for compassionate
appointment by granting relaxation of
education qualification in view of the
aforesaid provisions contained in the
Office Memorandum dated 11.12.2009.
(Para 17 and 18)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Udit Narain Singh Malpaharia Vs Addl.
Member Board of Revenue; AIR 1963 SC 786

2. Savitri Devi Vs D.J., Gorakhpur; (1999) 2 SCC
577

3. Jogendrasinhji Vijaysinghji Vs St. of Guj.;
(2015) 9 SCC 1

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
&
Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Vinay Tripathi, learned
counsel for the petitioners - Union of India.

2. By means of the instant Writ Petition,
the petitioners have challenged the validity of
the judgment and order dated 29.11.2024
passed
by
the
Central
Administrative
Tribunal, Lucknow Bench, Lucknow, in
Original Application No. 332/00317 of 2021.

3. At the outset, we noted that the
Central Administrative Tribunal, Lucknow
Bench, Lucknow has been arrayed as the
respondent no. 2 in this Writ Petition,
although the practice of impleading Courts
and
Tribunals
has
been
deprecated
repetitively.

4. In Udit Narain Singh Malpaharia
v. Addl. Member Board of Revenue: AIR
1963 SC 786, a Bench consisting of four
Hon'ble Judges of the Hon'ble Supreme
Court had held that in a Writ of Certiorari
not only the tribunal or authority whose
order is sought to be quashed but also
parties in whose favour the said order is
issued are necessary parties.

5. However, in Savitri Devi v.
District Judge, Gorakhpur: (1999) 2 SCC
577, a Bench consisting of two Hon'ble
Judges of the Hon'ble Supreme Court had
observed as follows:-

"14. Before parting with this
case, it is necessary for us to point out one
aspect of the matter which is rather
disturbing. In the writ petition filed in the
High Court as well as the special leave
petition filed in this Court, the District
Judge, Gorakhpur and the 4th Additional
Civil Judge (Junior Division), Gorakhpur
are shown as respondents and in the
special leave petition, they are shown as
contesting respondents. There was no
necessity for impleading the judicial
officers who disposed of the matter in a
civil proceeding when the writ petition was
filed in the High Court; nor is there any
justification for impleading them as parties
in the special leave petition and describing
them as contesting respondents. We do not
approve of the course adopted by the
petitioner which would cause unnecessary
disturbance to the functions of the judicial
officers concerned. They cannot be in any
way equated to the officials of the
Government. It is high time that the
practice of impleading judicial officers
disposing of civil proceedings as parties to
writ petitions under Article 226 of the
Constitution of India or special leave
petitions
under
Article
136 of
the
Constitution of India was stopped. We are
strongly deprecating such a practice."
2 All. U.O.I. & Ors. Vs. Sri Santosh Kumar & Anr.
443

(Emphasis added)

6. It is relevant to note that the
aforesaid observations were made by the
Bench consisting of two Hon'ble Judges of
the Supreme Court in Savitri Devi (Supra)
without referring to the earlier decision in
Udit Narain Singh Malpaharia (Supra)
given by a larger Bench consisting of four
Hon'ble Judges of the Hon'ble Supreme
Court.

7. In JogendrasinhjiVijaysinghji v.
State of Gujarat: (2015) 9 SCC 1, another
Bench consisting of two Hon'ble Judges of
the Hon'ble Supreme Court discussed
numerous
precedents
on
the
issue,
including the judgments in the cases of
Udit Narain Singh Malpaharia and
Savitri Devi (Supra) and explained the
law as follows:-

"43. As we notice, the decisions
rendered in Hari Vishnu Kamath [AIR
1955 SC 233], Udit Narain Singh [AIR
1963 SC 786] and Savitri Devi [(1999) 2
SCC 577] have to be properly understood.
In Hari Vishnu Kamath, the larger Bench
was dealing with a case that arose from
Election Tribunal which had ceased to exist
and expressed the view how it is a proper
party. In Udit Narain Singh, the Court was
really dwelling upon the controversy with
regard to the impleadment of parties in
whose favour orders had been passed and
in that context observed that tribunal is a
necessary party. In Savitri Devi, the Court
took exception to courts and tribunals
being made parties. It is apposite to note
here that propositions laid down in each
case have to be understood in proper
perspective. The civil courts, which decide
matters, are courts in the strictest sense of
the term. Neither the court nor the
Presiding Officer defends the order before
the superior court it does not contest. If the
High Court, in exercise of its writ
jurisdiction or revisional jurisdiction, as
the case may be, calls for the records, the
same can always be called for by the High
Court without the Court or the Presiding
Officer being impleaded as a party.
Similarly, with the passage of time there
have been many a tribunal which only
adjudicate and they have nothing to do with
the lis. We may cite a few examples: the
tribunals
constituted
under
the
Administrative Tribunals Act, 1985, the
Customs, Excise and Service Tax Appellate
Tribunal,
the
Income
Tax
Appellate
Tribunal, the Sales Tax Tribunal and such
others. Every adjudicating authority may
be nomenclatured as a tribunal but the said
authority(ies) are different from that pure
and simple adjudicating authorities and
that is why they are called the authorities.
An Income Tax Commissioner, whatever
rank he may be holding, when he
adjudicates, he has to be made a party, for
he can defend his order. He is entitled to
contest. There are many authorities under
many a statute. Therefore, the proposition
that can safely be culled out is that the
authorities or the tribunals, who in law
are entitled to defend the orders passed by
them, are necessary parties and if they are
not arrayed as parties, the writ petition
can be treated to be not maintainable or
the court may grant liberty to implead
them as parties in exercise of its
discretion. There are tribunals which are
not at all required to defend their own
order, and in that case such tribunals
need not be arrayed as parties. To give
another example : in certain enactments,
the District Judges function as Election
Tribunals from whose orders a revision or
a writ may lie depending upon the
provisions in the Act. In such a situation,
the superior court, that is the High Court,
444 INDIAN LAW REPORTS ALLAHABAD SERIES
even if required to call for the records, the
District Judge need not be a party...

(Emphasis added)

8.
The
Central
Administrative
Tribunal, which decides a matter, is not
entitled to defend its order before this Court
and, therefore, applying the law as it stands
clarified by the Hon'ble Supreme Court in
JogendrasinhjiVijaysinghji (Supra), the
Central Administrative Tribunal should not
be impleaded as an opposite party to a Writ
Petition filed against its order. Therefore,
this petition suffers from the defect of misjoinder of parties.

9. However, as the aforesaid defect is
a curable defect, we proceed to examine the
merits of the case to ascertain whether the
petition deserves to be admitted.

10. The aforesaid Original Application
has been filed by the respondent no. 1 seeking
compassionate appointment consequent to
death of his father on 17.04.2021 while he was
working as a Bearer under the petitioner
authorities. The father of the respondent no. 1
had died leaving behind his widow and son
but unfortunately the mother of the respondent
no. 1 also passed away on 23.04.2021. On
10.05.2021, the respondent no.1 submitted an
application for compassionate appointment
and subsequently he submitted reminders also.
When no action was taken thereon, he filed the
aforesaid original application.

11. The petitioners contended before the
Tribunal that the respondent no. 1 is merely a
class 8th pass whereas the minimum
educational qualification for recruitment to any
post is having passed class 10th examination.

12. The Tribunal referred to an Office
Memorandum dated 11.12.2009 issued by
the Department of the Personnel and
Training, Government of India, which
states that modification of the then existing
scheme for compassionate appointment
was
considered
in
light
of
the
recommendations of the 6th Central Pay
Commission and it was decided in
consultation with the Department of
Expenditure that for appointment on
compassionate
ground,
in
exceptional
circumstances,
the
government
may
consider
recruiting
persons
not
immediately
meeting
the
minimum
educational standards. The government
may engage them as trainee, who will be
given the regular pay-band and grade-pay
only
after
acquiring
the
minimum
qualification
prescribed
under
the
recruitment rules.

13. The learned counsel for the
petitioners has submitted that as per the
Circular dated 09.12.2011 issued by the
Railway Board, only widow / wife of the
deceased
employee
can
be
given
compassionate appointment even if she
does not possess the prescribed educational
qualification. The minimum educational
qualification was enhanced from class 8th
to class 10th in the year 2013 and since
then the relaxation in the minimum
educational qualification has been given
only for the widows of railway employees
and to no other person.

14. We have considered the aforesaid
submissions of the learned counsel for the
petitioners.

15. The Office Memorandum dated
11.12.2009 issued by the Department of
Personal and Training specifically provides
that: -

"for appointment on compassionate
grounds,
in
exceptional
circumstances
2 All. Gorakhnath Shukla Vs. State of U.P. & Ors.
445
Government may consider recruiting persons
not
immediately
meeting
the
minimum
educational qualification standards. Government
may engage them as trainees who will be given
the regular pay bands and grade pay only on
acquiring the minimum qualification prescribed
under the recruitment rules".

16. Master Circular No. 16 issued by the
Railway Board contained a provision for
relaxation of educational qualification which
says that: -

"The
educational
qualification
prescribed for the post should not relaxed.
However, if on the merits of the individual case,
General Manger feels such a relaxation on the
minimum qualification absolutely necessary,
such cases may be referred to the Ministry of
Railways. The Railway Board will consider
these cases on merits subject to the stipulation
that the candidates shall acquire the requisite
qualification within the prescribed time limit.
Such cases will carry the following stipulations,
in the offer of appointment: -

(i) The period to be allowed for
acquiring the qualification will be two years.

(ii) Such a person will not be
confirmed in service till he acquired the
qualification.

(iii) He will not be eligible for
promotion till such time he acquired the
qualification.

(iv) If any junior is promoted before
the senior compassionate appointee acquires
the qualification, such promotion of the junior
will be treated as regular. In other words, the
compassionate appointee will lose seniority in
the higher grade to such of his juniors as may
have been promoted to the next higher grade,
before he acquires the prescribed qualification.

(Emphasis added)

17. This provision contained in the
Master Circular issued by the Railway
Board is applicable to all persons who were
dependent on a deceased employee and that
is not limited in its application to the
widows of the deceased employees.

18. The respondent no. 1 was the only
child of his parents. His father died on
17.04.2021 and his mother also died on
23.04.2021. The aforesaid facts prima facie
make out exceptional circumstances in the case
of the petitioner, which ought to have been
taken into consideration while considering his
claim for compassionate appointment by
granting relaxation of education qualification in
view of the aforesaid provisions contained in
the Office Memorandum dated 11.12.2009
issued by the Department of Personal and
Training and the Master Circular No. 16 issued
by the Railway Board.

19. We are of the considered view that
the Central Administrative Tribunal has
rightly allowed the original application and
has directed the petitioners to reconsider
the case of the respondent no. 1 for
compassionate appointment in light of the
aforesaid Office Memorandum and the
Master Circular.

20. Accordingly, the writ petition
lacks merit and the same is dismissed at
the admission stage.
----------
(2025) 2 ILRA 445
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 2077 of 2025

Gorakhnath Shukla ...Petitioner
Versus
State of U.P.& Ors. ...Respondents