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.
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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.
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(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.
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P.R. RAMACHANDRA MENON,J.
……………………………………………
O.P.No. 38809 OF 2001.
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Dated this the 13th February,2009
J U D G M E N T