High Court Kerala High Court

Valsala Kumari vs Commandant on 13 February, 2009

Kerala High Court
Valsala Kumari vs Commandant on 13 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 38809 of 2001(T)



1. VALSALA KUMARI
                      ...  Petitioner

                        Vs

1. COMMANDANT
                       ...       Respondent

                For Petitioner  :SRI.R.KRISHNA RAJ

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :13/02/2009

 O R D E R
                                                                                          (C.R.)
                 P.R. RAMACHANDRA MENON, J.
              ........................................................................
                          O.P. No. 38809 OF 2001 &
                         W.P.(C) No. 12706 OF 2004.
              .........................................................................
                    Dated this the 13th February, 2009

                                  J U D G M E N T

The petitioner in both these petitions are one and the same.

Sustainability of Ext.P13 order passed by the first respondent

rejecting the claim of the petitioner seeking the benefit of

compassionate employment under Ext.P2 State scheme is the

subject matter involved in W.P.(C)No. 12706 of 2004; whereas

the Original Petition filed much earlier pertains to different

reliefs; viz (i) compassionate appointment under respondent

Nos. 1 to 3 ; (ii) disbursement of monetary benefits allegedly due

in respect of the military service rendered by the deceased

husband of the petitioner and (iii) in respect of the claim put

forth against the Railways for damages when the deceased

husband, while on duty was run over by the train when it was

being shunted in the premises of the railway station.

2. With regard to the reliefs prayed for in the earlier case

(O.P.38809 of 2001), a detailed counter affidavit has been filed

by the respondents asserting that the request for compassionate

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

2

appointment preferred by the petitioner was duly considered, but

no favourable orders could be passed as no vacancy had arisen

as allocable to the petitioner on the basis of her turn and the

quota earmarked for giving such employment assistance of

compassionate appointment . It is pointed out by the learned

Central Government counsel for the respondents in the said

case, with reference to Ext. R1(b) produced along with the

counter affidavit, that the application for compassionate

appointment can be kept pending only for one year and if the

turn has not arisen in the meanwhile, it cannot be considered

any further.

3. The learned Central Government Counsel further pointed

out that the question of compassionate appointment can be

considered and the benefit can be extended only in accordance

with the scheme and that there is absolutely no violation of any

of the provisions in the scheme in respect of the quota

earmarked or otherwise; particularly when no such challenge

has been raised in O.P. No. 38809 of 2001. It is also brought to

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

3

the notice of this Court that the Apex Court vide the decision in

Himachal Road Transport Corporation vs. Dinesh Kumar

[(1996) 4 SCC 560] , has held that the benefit of

compassionate appointment cannot be extended by directing the

Government/Department to create supernumerary vacancies

(Paragraph 10). The law has been reiterated by the Apex Court

in the subsequent decision in Hindustan Aeronautics Ltd. vs.

A. Radhika Thirumalai [1996) 6 SCC 394] as well. This

being the position and since the reason for rejection of the

application of the petitioner for compassionate appointment by

the respondents in O.P.No. 38809 of 2001 has not been

assailed, absolutely no relief can be extended to the petitioner in

this regard.

4. With regard to the second prayer raised in the said

Original Petition, a detailed statement has been filed by

respondent Nos. 1 to 4 pursuant to the interim order passed by

this court on 25.07.2007 wherein it has been stated in black and

white terms showing the break-up figures of all the benefits

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

4

payable to the petitioner on the death of her husband. The

amounts released to her under different heads include Ex-Gratia

payment of Rs.5 lakhs, Army Group Insurance Fund Death

Benefit of Rs, 3.75 lakhs and such other amounts, besides

sanctioning and granting of family pension. It is asserted that

no further amount is due from the respondents in this regard.

Obviously no reply affidavit has been filed by the petitioner

rebutting the statement made by the respondents. Hence the

second prayer in the Original Petition does not desrve to be

considered any further.

5. With regard to the third prayer, claiming damages from

the Railways, it is pointed out by the learned counsel appearing

for the Railways that the death of the husband of the petitioner

actually occurred when he was hit by loose shunting boggies at

Merta Road Railway Station in Rajasthan. It is stated that on

10. 09.1998, when the husband of the petitioner was recklessly

crossing the railway track, a train hit him and he sustained

multiple crush injuries on both legs which led to his death on the

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

5

same date. It is further stated that the said incident does not

come within the meaning of “untoward incident” as

contemplated under section 123(c) of the Railways Act, 1989 so

as to make the petitioner eligible for compensation from the

Railways. It is also submitted that the deceased was never a

passenger at the relevant time and hence there is absolutely no

duty or liability for the Railways to satisfy the claim put forth in

this regard. Learned counsel further points out that the

petitioner, if at all she is aggrieved, it is for her to approach the

appropriate forum-the Railway Claims Tribunal constituted under

the Railways Act, 1989 where the matter has to be adjudicated

on the basis of the evidence to be adduced and that the

petitioner cannot have any short cut dispensing with the

jurisdiction entrusted with the Tribunal by invoking the

discretionary jurisdiction of this court under Article 226 of the

Constitution of India.

6. Obviously the third relief sought for by the petitioner in

the Original Petition No. 38809 of 2001 is rather a hypothetical

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

6

one seeking for a direction to pay compensation to the extent it

would have been payable ” had she approached the Railway

Claims Tribunal”. As she has not filed any claim before the

Tribunal, this court will not be justified in venturing into any such

exploratory exercise. The remedy of the petitioner in this

regard, if otherwise justifiable, lay elsewhere.

7. Coming to Writ Petition No. 12706 of 2004, the reliefs

prayed for by the petitioner are mostly confined to the

respondents 1 to 3, i.e., the State Government and authorities

thereunder. It appears from the materials brought on record that

the petitioner, having failed to obtain favourable reliefs in

respect to the benefit of compassionate appointment under the

respondents in O.P.No. 38809 of 2001 (Defence/Army),

approached the State Government and authorities there under

seeking for the benefit under Ext.P2 State scheme. The

application preferred by the petitioner in this regard was

originally turned down by the concerned respondent vide Ext. P9

dated 15.02.2000, which was subjected to challenge before this

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

7

Court by filing O.P.NO. 11143 of 2000, which culminated in Ext.

P12 judgment dated 19.12.2003. This court found that the

matter required fresh consideration by the respondents and

accordingly the impugned orders, Exts. P9 and P11 were set

aside and the concerned respondents were directed to reconsider

the request of the petitioner and pass final orders within the

specified time. Pursuant to the said verdict, the matter was

considered afresh by the Government and the application was

rejected vide Ext. P13 stating that the death of the husband of

the petitioner did not occur “in an operation area” as

contemplated in Ext.P2 Scheme, which in turn has been

subjected to challenge in the present Writ Petition.

8. Separate counter affidavits have been filed from the part

of the respondents 1 and 2. The action pursued by respondent

Nos.4 and 5, as submitted in the other Original petition, has been

explained in the counter affidavit filed by respondent Nos.4 and

5 filed in this case as well and it is pointed out that such action

has not been subjected to challenge in W.P.(C) 12706 of 2004.

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

8

That apart, it has also been pointed out in paragraph No.4 of the

counter affidavit that the death of the husband of the petitioner

was not in an ‘operation area’ as envisaged in the Scheme.

9. Ext. P13 has been sought to be justified by the

respondents 1 and 2 specifically referring to the relevant clauses

in Ext. P2 scheme. The petitioner has filed reply affidavit wherein

it has been stated that the concept of death in an ‘operation

area’ need not be understood as death in operation in war in the

operation area and that it should be given a wider meaning. The

learned counsel for the petitioner referring to Maxwel on

Interpretation points out that a beneficial construction shall be

adopted in this case.

10. Obviously, the reliefs sought for in the Writ Petition are

based on Ext. P2 scheme formulated and notified by the

Government of Kerala. The eligibility thereunder is specified in

Clause (3), which is extracted below;

3. The concession under this scheme shall be

applicable to one dependent of the following

categories of defence/GREF/BSF personnel:

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

9

(i) Killed/Missing/Disabled, in action

(ii) Killed/disabled in operation areas due to

high altitude or adverse climatic conditions or

due to explosion of mines, bobytraps, vehicle

accidents etc.

(iii) Death/disability/missing in operation

areas, due to accidents during peace time

conditions circumstances of which are identical

to activities during operation engagements.

The operation area will be as decided by the

Union Government from time to time.

Encounters in such circumstances when

Defence/GREF/BSF personnel are called in to

assist Civil power may also be included for

giving employment assistance under the

scheme.

Note: In the case of the dependent of the

disabled personnel, the dependent of the ex-

servicemen who had sustained injury/disability

over 50 per cent is only eligible for the benefit

of the scheme. ”

Clause 3(iii) specifically states that ‘operation area’

contemplated therein will be with reference to the area as

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

10

decided by the Union Government from time to time. The

requirement and intent of Ext. P2 scheme cannot be widened or

interpreted in a different manner as the court would like it to be,

but has to be considered as provided. Since the provision is

unambiguous, the term ‘operation area’ has to be understood as

decided by the Central Government and confining the benefit

only to the particular class or group of people who come within

the four corners of the scheme as specified and notified. This

being the position, the only question to be considered is whether

the place where the death of the husband of the petitioner took

place was an ‘operation area’ or not. The petitioner has also a

case as raised in paragraph No.4 of the reply affidavit that the

deceased husband of the petitioner was proceeding to Army

Headquarters at New Delhi as part of his official duties and he

was serving 75 Armoured Regiment being posted at Jodhpur and

further that Jodhpur was very much an ‘operation area’

irrespective of the fact whether Merta Road Junction was an

‘operation area’ or not.

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

11

11. In view of the rival contentions and assertions from

both the sides, this court vide interim order dated 25.07.2007

had directed the respondents to file an affidavit as to the

classification of the concerned area so as to make it clear

whether the death actually occurred in an ‘operation area’ or not.

Pursuant to the said direction, the learned Central Government

Counsel for respondents 4 and 5 , on the basis of the

instructions received has filed an affidavit dated 09.10.2007

asserting that neither Jodhpur nor New Delhi has been classified

as an ‘operation area’.

12. It is pointed out by the learned counsel for the

petitioner that in the affidavit filed by respondent Nos. 4 and 5,

they have not produced any notification as to the declaration of

the area as not an ‘operation area’. This court does not find any

merit in the said contention; particularly in view of the fact that it

is a negative aspect, which cannot be proved by adducing any

positive evidence. On the other hand, when an affidavit has

been filed asserting that the concerned area was not an

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

12

‘operation area’, it is for the petitioner to rebut the said averment

by producing the relevant notification, if any, categorising the

concerned area as an ‘operation area’. Above all, it is to be

noted that the petitioner is not aggrieved with any of the

stipulations contained in Ext.P2 scheme confining the benefit to

such class of persons whose death occurred in such ‘operation

area’ as specified by the Central Government. Since Ext.P2

scheme has not been subjected to challenge, nothing further

requires to be considered in this regard and the matter is to be

confined to the facts and circumstances, as now available before

the court.

In the above circumstances, this court does not find any

tenable ground to grant the reliefs prayed for and both the

Original Petition and the Writ Petition are dismissed accordingly.

P.R. RAMACHANDRA MENON,
JUDGE.

lk

O.P. No. 38809 OF 2001 &
W.P.(C) No. 12706 OF 2004.

13

P.R. RAMACHANDRA MENON,J.

……………………………………………

O.P.No. 38809 OF 2001.

……………………………………………
Dated this the 13th February,2009

J U D G M E N T