Drishya Mol v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934** **WP(C).No. 13001 of 2007 (W) ---------------------------** **PETITIONER(S):** **--------------------------** **DRISHYA MOL,D/O.LATE EX.GS-142996 PNR K.GOPI,RESIDING AT KANDATHIL HOUSE,ERICKAVU P.O., VIA : KARTHIKAPPALLY,ALAPPUZHA DISTRICT.** **BY ADVS.SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN** **RESPONDENT(S):** - **----------------------------** **1. THE UNION OF INDIA,REPRESENTED BY THE SECRETARY,MINISTRY OF ROADS AND HIGHWAYS, BRDB, B WING 4TH FLOOR,KASHMIR HOUSE,DHQ P.O., NEW DELHI-110 011.** **2. THE DIRECTOR GENERAL BOARDER ROADS, SEEMA SADAK BHAWAN RING ROAD,DELHI CANTT, NEW DELHI- 110010.** **3. THE COMMANDANT,GREF CENTRE,DIGHI CAMP, PUNE-15.** **4. THE CHIEF ENGINEER,HQCE (P) UDAYAK (GREF) C/O.99 APO.** **5. THE OFFICER COMMANDING ,1628 PNR COY** - **(GREF) C/O.99 APO.** **BY ADV. SRI.K.SANIL KUMAR, ADDL.CGSC SRI.JOHN VARGHESE, ASSISTANT SG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.13001/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE LETTER DATED 12/3/2002 FROM THE 3RD RESPONDENT** - **P2 COPY OF THE LR.NO.1456/06/107/E1 DATED 28 MAR 2002 FROM THE 3RD RESPONDENT TO THE PETITIONER'S MOTHER.** - **P3 COPY OF THE APPLICATION FORM SEEKING APPOINTMENT TO THE PETITIONER** - **P4 COPY OF THE LR.NO.1456/6/111/EIR DATED 31/1/2004 FROM THE 3RD RESPONDENT TO THE PETITIONER'S MOTHER.** - **P5 COPY OF THE LETTER DATED 8TH JULY 2002 NO.12701/EMP/POL/DGBR/64/EG2 FROM THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **P6 COPY OF THE OFFICE MEMORANDUM DATE 5/5/2003 OF THE 1ST RESPONDENT** - **P7 COPY OF THE REPRESENTATION DATED 4/3/2004 SUBMITTED BY THE PETITIONER'S MOTHER BEFORE THE 3RD RESPONDENT** - **P8 COPY OF THE LETTER NO.1456/6/27/EIR DATED 13/3/2004 FROM THE 3RD RESPONDENT TO THE PETITIONER'S MOTHER.** - **P9 COPY OF THE JUDGMENT DATED 22/11/2004 IN WP(C)NO.15341/2004 OF THIS HON'BLE COURT.** - **P10 COPY OF THE ORDER DATED 16/2/2007 OF THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** - **R3(A) COPY OF THE APPLICATION DATED 9/05/2002 BY PETITIONER'S MOTHER** - **R3(B) COPY OF THE OM.NO.14014/6/94-ESTT (D) DATED 09 OCT 1998** - **R3(C) COPY OF THE OM.NO.14014/23/99-ESTT (D) DATED 03 DEC 1999** - **R3(D) COPY OF THE INSTRUCTION DATED 08/07/2002 ISSUED BY THE 2ND RESPONDENT.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 13001 of 2007 - W --------------------------------------------------Dated this the 12[th] day of June, 2012 **J U D G M E N T** The petitioner challenges Exts.P4, P8 and P10 orders and seeks a direction to the respondents to consider her claim for appointment on compassionate grounds in the territory of India in Group 'D' post. 2. The petitioner is the daughter of late N.K.Gopi who died while in service on 3.3.2003. The Scheme for appointment of dependents on compassionate grounds was available for the petitioner. 3. It is said that though as per the Scheme for compassionate appointment an application was given by the mother of the petitioner,the application was submitted only after one year and nine months. As per the Scheme the period during which the application ought to have been submitted was one year. In that view of the matter, the respondents rejected the petitioner's claim. In fact, the petitioner was a minor at the time of death of her father and only after she became a major, application was filed in terms of the Scheme. W.P.(C) No. 13001 of 2007 - W 2 4. The matter was originally challenged by the petitioner before this Court by filing W.P.(C) No. 15341/2004 and by judgment dated 22.11.2006 produced as Ext.P9 in the case, this Court after having referred to the judgment of the Supreme Court in **Umesh Kumar Nagpal** v. **State of Haryana and Others [** 1994(4) S.C.C. 138] had come to a conclusion that on the basis of the factual position remaining in the case it cannot be said that reasonable period had elapsed as on the date of the application and so the dictum laid down in the decision of the Supreme Court has no factual application to the present case. 5. This Court, therefore directed the 3[rd] respondent to consider the claim of the petitioner on compassionate appointment to a suitable post and dispose of the application on merits. After having considered the application of the petitioner, the 3[rd] respondent by Ext.P10 order again rejected the application of the petitioner. It is stated in Ext.P10 that there was delay of one year and nine months on the part of the petitioner in submitting the application in form DD. It is also stated that her case is not covered for the compassionate scheme as she was minor at the time of death of her father. The 3[rd] respondent also referred to the revised policy issued by Government of India in respect of cases which states that compassionate appointments are to be considered within one year from the date of W.P.(C) No. 13001 of 2007 - W 3 death of Government servant and that too only if vacancy exists for compassionate appointment within the prescribed ceiling of 5% of vacancies falling under direct recruitment quota in any Group “C” or “D” post. It is also observed that as per Government notification DOP & T OM No. 4014/19/2002-Estt (D) dated 05.5.2005 it is decided to enhance the time limit from one year to three years to genuine and deserving cases. It is stated that the aforesaid provision will not apply to the petitioner since the said order dated 5.5.2005 is not to be made applicable to the petitioner. 6. Heard the learned counsel for the petitioner and also Standing Counsel for the respondents. 7. It is contended by the learned counsel for the petitioner that in view of Ext.P9 judgment, the respondent has no authority to reject the claim on the ground of delay. The question of delay has already been considered by this Court and arrived at a finding that the delay is only reasonable. In that view of the matter the authorities ought to have considered her claim for appointment in an available vacancy. 8. On the other hand, the learned Standing Counsel appearing for the respondents contended that the petitioner was not eligible to be appointed to any post at the time of death of Sri.Gopi as she was a minor during the relevant time. Apart from that W.P.(C) No. 13001 of 2007 - W 4 an application was submitted only after one year and nine months which was against the Scheme of appointment to be made under compassionate grounds. The learned counsel also sought support of the judgment of the Supreme Court in **Umesh Kumar Nagpal's** case in order to contend for the position that as far as appointments on compassionate grounds are concerned, it is for the appointing authority to consider the validity of the claims and this Court cannot interfere in the matter. The argument of the counsel is that the claim for appointment on compassionate grounds is not a legal right and is subject to certain conditions and unless the conditions are observed by the applicant, there cannot be a direction to the Department to make such appointments even by non - observing the rules. 9. The learned counsel was also supported the reasons stated taken in Ext.P10. It is also contended that since the compassionate appointment is only 5% of the existing vacancies, it is difficult to consider all the claims. It is only on account of such factors a screening method is adopted to see that persons who strictly comply with the rules framed under the scheme are being considered for appointment on compassionate grounds. 10. Having taken into consideration the facts and circumstances of the case, I am of the view that the delay in W.P.(C) No. 13001 of 2007 - W 5 submitting the application cannot be a ground available to the Department as a reason to deny an appointment if the petitioner is legally entitled for appointment. This Court had already come to a conclusion that the delay caused in submitting the application was reasonable since it was only one year and nine months and that too in a circumstance where the petitioner was a minor at the time of death of the deceased. In fact, compassionate appointments are available only to persons above the age of 18 and if the dependent was a minor at the relevant time, it cannot be the rule of law that after attaining majority they cannot be considered for appointment under compassionate grounds. That being the situation, once Ext.P9 has become final, the delay in submitting the application cannot be taken as a defence by the authorities in order to deny the benefit of appointment on compassionate grounds to the petitioner. I do not think that any other grounds has been specified by the respondents to deny the benefit of appointment to the petitioner. 11. Under these circumstances, this writ petition is only to be allowed and Ext.P10 is liable to be set aside. I accordingly do so and following direction is issued.: W.P.(C) No. 13001 of 2007 - W 6 The 3[rd] respondent shall consider the application of the petitioner for appointment and shall pass orders within a period of six months from the date of receipt of a copy of this judgment. ## **A.M.SHAFFIQUE, JUDGE.** rka