Bindu C. and Sindhu B. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** ## **WP(C).No.16048 OF 2020(E)** ## **PETITIONERS:** - **1 BINDU C., W/O. LATE HAV. RADHAKRISHNAN K., R.K.BHAVAN, CHUNAKKARA NORTH P.O., MAVELIKKARA, ALAPPUZHA DISTRICT.** - **2 SINDHU B., D/O. LATE HAV. RADHAKRISHNAN K., R.K.BHAVAN, CHUNAKKARA NORTH P.O., MAVELIKKARA, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 SECRETARY, SAINIK WELFARE DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **3 DIRECTOR, DEPARTMENT OF SAINIK WELFARE, VIKAS BHAWAN, THIRUVANANTHAPURAM - 695 033.** - **4 ZILA SAINIK WELFARE OFFICER, ZILA SAINIK WELFARE OFFICE, ARATTUVAZHY ROAD, ALAPPUZHA - 688 007. BY ADV.SRI. SUNIL KUMAR KURIAKOSE - GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.16048 OF 2020(E)** **-2-** ## **JUDGMENT** ## **Dated this the 12th day of March 2021** The petitioners are stated to be the wife and daughter of a Havildar by name Sri.Radhakrishnan K., who unfortunately died while serving the Assam Rifles on 05.06.2004, during certain anti - insurgency operations at Mizoram. 2. The petitioners say that, as is evident from Ext.P2 certificate issued by the competent Authority of the Assam Rifles, the death of Radhakrishnan has been directly attributed to paramilitary service; and therefore, that one of them was entitled to be appointed to a suitable vacancy by the Government of Kerala, under the orders providing appointment on compassionate grounds to dependents of such personnel. 3. The petitioners submitted that they, therefore, preferred Ext.P5 application on 09.08.2005, but that it was rejected through ## **WP(C).No.16048 OF 2020(E)** **-3-** Ext.P8 order dated 27.09.2005, citing the reason that, in the extant Government Order providing compassionate appointment, the dependents of Assam Rifles have not been included. 4. The petitioners contend that the Government Order referred to in Ext.P8 - which has been produced as Ext.P7 herein - is illegal and unconstitutional because, it has excluded the personnel of Assam Rifles from its sweep, while including the personnel of the General Reserve Engineering Force (GREF) and that of the Border Security Force (BSF), even though all of them, in their essential attributes, are included as one class otherwise. 5. The petitioners substantiate their plea by pointing out to Ext.P9 - which is a literature available as regards the Central Armed Police Forces - and say that this Division includes the Assam Rifles, along with Border Security Force, ## **WP(C).No.16048 OF 2020(E)** **-4-** Central Industrial Security Force, Central Reserve Police Force, Indo-Tibetan Border Police, National Security Guards and the Sashastra Seema Bal. 6. The petitioners submit that, being alerted of this, the Government thereafter issued Ext.P11 order dated 07.06.2019, bringing into the fold of the Scheme for compassionate appointment, the personnel of the Assam Rifles also, along with the aforementioned categories. They say that, however, Ext.P11 has only been given prospective effect; and that subsequently, the Government again issued Ext.P15 order dated 11.03.2020, superseding Ext.P11, including all the aforementioned categories of forces, but making it clear that eligibility of the dependents of a slain soldier will only be if such death occurs on or after 07.06.2019, which is the date of Ext.P11 order. 7. The petitioners predicate that Exts.P7, P11 and P15, to the extent to which it initially ## **WP(C).No.16048 OF 2020(E)** **-5-** excluded the Assam Rifles from the Scheme for compassionate appointment and to the extent to which it subsequently included them, but only with effect from 07.06.2019, are illegal and unlawful. They, therefore, pray that Ext.P7 be set aside and Ext.P15 be read-down so as to allow the dependents of Assam Rifles also to be offered the benefits of compassionate appointment under it, notwithstanding that the soldier died before 07.06.2019. 8. I have heard Sri.George Varghese Perumpallikuttiyil – learned counsel for the petitioners and the learned Government Pleader – Sri.Sunil Kumar Kuriakose, appearing for the official respondents. 9. The learned Government Pleader supported the impugned orders explaining that the Scheme for Compassionate Appointment was introduced by the Government of Kerala for persons serving the Armed ## **WP(C).No.16048 OF 2020(E)** **-6-** Forces, GREF and BSF, who belong to the State of Kerala by birth and domicile, in the year 1974. 10. Sri.Sunil Kumar Kuriakose submitted that the first Government Order, bearing No. GO(MS)No.257/79/GAD dated 17.04.1979, has been produced on record, along with a memo dated 23.01.2021, by which, for the first time, dependents of martyred soldiers of the Armed Forces, GREF and BSF were also given the benefit of compassionate appointment. 11. The learned Government Pleader explained that this is because, the soldiers in these categories of services - who were directly involved in the 1947-48 Kashmir Conflict and Goa and Hyderabad Operations; the 1962 Chinese Aggression and finally the 1971 and 1983 Indo-Pack Wars - were slain or martyred directly as a consequence of War; and therefore, that Government of Kerala decided to grant succor to their ## **WP(C).No.16048 OF 2020(E)** **-7-** dependents recognising the ultimate sacrifice given by them for their Country. 12. Sri.Sunil Kumar Kuriakose, thereafter, submitted that when the conditions of the war later abated, the stipulations in this Government Order were relaxed through Ext.P7, whereby not only the dependents of soldiers - who died in war included for its benefits, but also those who were injured and suffering from 50% disability were being declared unfit for civil employment on account of the duties attributable to such service. 13. The learned Government Pleader submitted that, thereafter, in the year 2019, Government thought it fit to include the various other categories of forces also into the Scheme, which lead to Ext.P11 being issued, which was then given a formal character through Ext.P15 order on 11.03.2020, however, confining the benefits under ## **WP(C).No.16048 OF 2020(E)** **-8-** it to the newly introduced categories other than the Military, GREF and BSF, to be only with effect from 07.06.2019, which is to say, to cover those cases where the fatalities occur after that date. The learned Government Pleader, therefore, contended that the impugned orders are without error. 14. After contending as afore, the learned Government Pleader then submitted that Exts.P7, P11 and P15 orders were issued by the Government in furtherance of a policy and therefore, that it may not be within the locus of the petitioners to challenge it before this Court, because the circumstances and the criteria that weighed with the Government are based on specific inputs and relevant documents. He relied for substantiation on the judgment of the Hon'ble Supreme Court in **Panchi Devi v. State of Rajasthan** [2009 KHC 4145], arguing that it is up to the Government to have ## **WP(C).No.16048 OF 2020(E)** **-9-** fixed a cut-off while including newer categories of forces eligible for the benefit of compassionate appointment; and predicated that this Court cannot, in exercise of powers under Article 226 of the Constitution of India, direct the Government to modify the same or to fix a different cut-off date. He supplemented his arguments by further contending that since Exts.P11 and P15 are Government orders, it is not possible to give retrospectivity to it and that if it is so done, then it will open a floodgate of claims by other dependents of martyred soldiers prior to 07.06.2019. He, therefore, prayed that this writ petition be dismissed. 15. When I evaluate the afore submissions, I am without doubt that the competence of this Court to inter-meddle with the policy decisions of the Government is extremely restricted. It is now well settled that it is only in cases where the ## **WP(C).No.16048 OF 2020(E)** ## **-10-** policy is capricious or perverse or is contrary to the Constitutional scheme of this country, this Court will step in to set it aside or correct it. 16. In the case at hand, it has been explained by the Government that they first classified the Military, along with GREF and BSF as one category in the year 1974, taking into account the fact that these forces were directly involved in war. It was thereafter relaxed through Ext.P7 to include not merely dependents of martyred soldiers, but also those who were discluded; but the status of the categories of forces included, as in the year 1979, was maintained. 17. It is only subsequently in the year 2019, that the Government decided to include various other categories of forces and this order was issued only on 07.06.2019, which date has been retained in Ext.P15 order dated 11.03.2020, to be the cut-off, after which fatalities for the ## **WP(C).No.16048 OF 2020(E)** **-11-** purpose of compassionate employment have been recognised. 18. I cannot find the justification offered by the Government in support of their policy to be perverse or flowed though Sri.George Varghese - the learned counsel for the petitioner - vehemently argues that while Ext.P7 order was issued on 29.04.2002, the Government ought to have included “all the categories of the Central Armed Police Forces as defined in Ext.P9 and that such non-inclusion is illegal and unconstitutional.” I am afraid that I cannot find immediate favour with this contention because the Government did not issue Ext.P7 for the first time in the year 2002, but was only following the 1979 order, by which the Scheme for Compassionate Appointment was introduced. Through Ext.P7, the Government had only relaxed the criteria for granting compassionate appointment, by reckoning even ## **WP(C).No.16048 OF 2020(E)** **-12-** disability of 50% to be one of the applicable ones; but for all other purposes, the manner and tenor of the 1979 order was maintained. Therefore, I cannot find the non-exclusion of the Assam Rifles in Ext.P7 to be perverse or unconscionable, particularly when there is nothing before me to show that the Government had been approached by any person at that relevant time for such inclusion. Obviously, the Government continued the 1979 order, but relaxed it to the extent afore mentioned. 19. It was subsequently, in the year 2019, that the Government decided to include several categories of Central Armed Police Forces within the ambit of the Scheme and this was done through Exts.P11 and P15 orders. Since Ext.P11 was dated 07.06.2019 and since the said order could not have any retrospective effect - it being an executive one, when Ext.P15 was issued superseding it, the ## **WP(C).No.16048 OF 2020(E)** **-13-** date 07.06.2019 was adopted as a cut-off date. This certainly cannot be found to be unjustified or contrary to the provisions of law. 20. That said, there is certain amount of force in the submissions of the petitioners that the exclusion of personnel of the Assam Rifles from the scheme until 2019 was unfair, particularly when it is common knowledge that such personnel were also involved in several wars through the pages of history. The facts involved in this particular case would bear testimony to the unintended prejudice to such personnel, because Havildar Radhakrishnan died on 05.06.2004, which was two years after Ext.P7 order; and 5 years before Ext.P11. At the time when he died - which has been certified to be on account of his participation in the Counter insurgency operations in Misoram – the personnel of Assam Rifles were not included in the Scheme and obviously, ## **WP(C).No.16048 OF 2020(E)** **-14-** therefore, through Ext.P7, the application of the petitioners were rejected citing that singular reason. This certainly is an unhappy consequence of the manner in which Ext.P7 continued to operate, especially when Havildar Radhakrishnan admittedly died and was martyred while serving his country. However, on account of Ext.P7 order and the subsequent Ext.P15 order, the competent Authorities under the Government refused to offer solace to the petitioners. **==> picture [391 x 12] intentionally omitted <==** Government is so incapacitated and it will be certainly up to them to decide if cases like this have to be given the importance it deserves, by offering support to the dependents of such personnel, who have offered the ultimate sacrifice in service of the country. 22. In that perspective, I am of the view that the Government must consider whether benefits ## **WP(C).No.16048 OF 2020(E)** **-15-** under the Scheme can be offered to the personnel of the Assam Rifles who died prior to 07.06.2019 also and then take a fresh decision with respect to the petitioner's case _de hors_ Ext.P7. Resultantly, I order this writ petition and direct the competent Authority of the Government to take a decision as to whether the dependents of the martyred soldiers included in the categories of forces in Ext.P15, can also be reckoned for benefits, notwithstanding the fact that such soldiers died prior to 07.06.2019. In other words, the Government will specifically decide if such benefits can be offered _de hors_ the cut-off date as afore and if it can relate back to an earlier date, taking note of the functional attributes of the included categories of forces as being comparable to the Military and the BSF. The afore exercise shall be done by the competent Authority of the Government as ## **WP(C).No.16048 OF 2020(E)** **-16-** expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment; consequent to which, the petitioners' claims will be reconsidered without reference to Ext.P7 and an appropriate order thereon will also be issued, within a period of one month thereafter. **Sd/DEVAN RAMACHANDRAN JUDGE** akv/stu ## **WP(C).No.16048 OF 2020(E)** ## **-17-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE CERTIFICATE DATED 19.05.2005 ISSUED BY THE OFFICE OF THE DEPUTY INSPECTOR GENERAL OF THE ASSAM RIFLES.** **EXHIBIT P2** **A TRUE COPY OF ATTRIBUTABILITY CERTIFICATE DATED 22.09.2005.** **EXHIBIT P3** - **A TRUE COPY OF THE SSLC BOOK OF THE 1ST PETITIONER.** - **EXHIBIT P4** - **A TRUE COPY OF THE CERTIFICATE ISSUED BY THE BOARD OF TECHNICAL EXAMINATIONS.** **EXHIBIT P5 A TRUE COPY OF APPLICATION DATED 09.08.2005 SUBMITTED BY THE 1ST PETITIONER (PART B).** **EXHIBIT P6 A TRUE COPY OF COMMUNICATION NO.A5/EMP/D/H/5564/2005 DATED 22.08.2005 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.** **EXHIBIT P7 A TRUE COPY OF G.O.(P) NO.110/02/GAD DATED 29.04.2002 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF COMMUNICATION NO.A5/EMP/D/H/5564/2005 DATED 27.09.2005 SENT BY THE 4TH RESPONDENT TO THE 1ST PETITIONER.** **EXHIBIT P9 A TRUE COPY OF THE DETAILS OF THE POLICE - II, DIVISION OBTAINED FROM HTTPS://WWW.MHA.GOV.IN/SITES/DEFAULT/FI LES/POLICE-II-INTRO.PDF.** **EXHIBIT P10** **A TRUE COPY OF G.O.(P) NO.450/99/GAD DATED 29.06.1999.** ## **WP(C).No.16048 OF 2020(E)** **-18-** **EXHIBIT P11** **A TRUE COPY OF G.O.(P) NO.01/2019/SWD DATED 07.06.2019.** **EXHIBIT P12 A TRUE COPY OF JUDGMENT DATED 04.10.2019 OF THIS HONOURABLE COURT IN W.P.(C) NO.2486/2006.** **EXHIBIT P13 A TRUE COPY OF LETTER DATED 04.11.2019 SENT BY THE 1ST PETITIONER.** - **EXHIBIT P14 A TRUE COPY OF THE CARD ISSUED BY MJKM CANCER RESEARCH CENTRE.** **EXHIBIT P15 A TRUE COPY OF G.O.(P) NO.02/2020/SWD DATED 11.03.2020.** - **EXHIBIT P16 A TRUE COPY OF G.O.(MS) NO.14/2020/SWD DATED 20.05.2020 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P17 A TRUE COPY OF THE RULES FOR ADMINISTRATION OF CHIEF MINISTER'S SAINIK WELFARE FUND** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE