Pooja Nair v United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ## **`THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944`** ## **`WP(C) NO. 4927 OF 2018`** ## **`PETITIONER:`** ``` POOJA NAIR AGED 26 YEARS D/O.PURUSHOTHAMAN NAIR, CHARUVAPARAMBIL HOUSE, CHANNANIKADU P.O.,KOTTAYAM. ``` ``` BY ADV M.VANAJA ``` ## **`RESPONDENTS:`** - **`1 UNITED INDIA INSURANCE CO. LTD. REGISTERED AND HEAD OFFICE, 24, WHITES ROAD, CHENNAI-600014, REPRESENTED BY IT'S CHAIRMAN CUM MANAGING DIRECTOR.`** - **`2 UNITED INDIA INSURANCE CO. LTD. REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, COCHIN-682011, REPRESENTED BY DEPUTY GENERAL MANAGER. SRI.T.J.LAKSHMANAN IYER`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 4927 OF 2018 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 3[rd] day of November, 2022** This writ petition is filed seeking the following prayers: _“(i) Issue a writ of certiorari or any other writ, order or direction calling for the records leading to Exts.P1 to P11 and quash Exts.P6 & P11 and direct the respondents to grant relief for assistance to the petitioner under the scheme of compassionate appointment or any other scheme applicable under the respondents._ _(ii) Declare the denial of compassionate appointment to the petitioner under the scheme of compassionate appointment or any scheme prevailing under the respondents as illegal”_ 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner is the daughter of K.S.Girijakumari, who died in harness on 02.06.2000. It is submitted that, at the relevant time, the petitioner was an 8 year old child. The petitioner’s father had submitted an application seeking compassionate appointment for the petitioner pointing out her age and seeking that she may be considered for compassionate appointment on attaining majority. It is submitted by the learned ``` WP(C) NO. 4927 OF 2018 ``` ``` 3 ``` counsel for the petitioner that the petitioner’s father later remarried and the petitioner was rendered destitute due to the death of her mother. The petitioner completed SSLC in 2008 and attained the age of 18 in the year 2010. She submitted Ext.P4 application on 07.05.2010 seeking compassionate appointment on account of the death of her mother. By Ext.P5 judgment, the request of the petitioner was directed to be considered. However, by Ext.P6 order dated 08.11.2010, the claim of the petitioner was rejected stating that the scheme of compassionate appointment which was prevalent as on the date when the petitioner’s mother passed away had been withdrawn on 01.06.2002 and replaced by lump sum monetary compensation. It is submitted that since there was no compassionate appointment scheme in force in the respondents at the relevant time, the petitioner’s application could not be considered. 4. It is contended that by Ext.P7, a revised scheme for compassionate appointment was made applicable to the respondents on 12.11.2014. The petitioner again approached the respondents and by Ext.P8 judgment, the claim of the petitioner was directed to be ``` WP(C) NO. 4927 OF 2018 ``` ``` 4 ``` considered. It was stated that the request should be considered on a sympathetic consideration of the petitioner’s claim. It is submitted that Ext.P9 representation was filed by the petitioner pointing out the factual aspects, but Ext.P11 order has now been passed rejecting the petitioner’s claim. It is stated in Ext.P11 that, as on the date of death of the petitioner’s mother, the petitioner was a minor, but her father, Mr.Purushothaman Nair, was gainfully employed and that he remarried on 21.03.2001. It is stated that the application for compassionate appointment was submitted after several years of demise of the petitioner's mother and that the petitioner’s claim for compassionate appointment cannot be considered even in terms of the 2014 Scheme. 5. The learned counsel for the petitioner submits that the petitioner, being only 8 years old at the time of her mother’s death, could not have submitted an application for compassionate appointment until she attains the age of majority. It is submitted that her request for compassionate appointment as evident by Ext.P4 was rejected only on the ground that there is no scheme in existence as on the date of consideration. It is further contended that, when the scheme was ``` WP(C) NO. 4927 OF 2018 ``` ``` 5 ``` reintroduced, the petitioner had again approached the respondents and that the refusal to consider the petitioner’s claim in terms of the scheme is completely untenable. 6. The learned counsel for the petitioner places reliance on the decisions of the Apex Court in **Bhawani Prasad Sonkar v. Union of India and others [2011 (4) SCC 209]** and **Canara Bank and another v. M.Mahesh Kumar [2015 (7) SCC 412]** . The learned counsel for the petitioner would also contend that since, admittedly, the petitioner’s father had remarried in 2001, the actual financial condition of the petitioner and her dire financial straits ought to have been considered by the respondents and that the rejection is completely untenable. 7. A statement has been placed on record by the respondents. It is submitted that the petitioner’s mother had passed away in the year 2000 and that the contention that the petitioner’s father had submitted a request on 25.10.2002 is factually incorrect and there was no application filed as contended by the petitioner by her father. It is further submitted that it was only on 10.05.2010 that the respondent- ``` WP(C) NO. 4927 OF 2018 ``` ``` 6 ``` company received a request dated 07.05.2010 from the petitioner seeking compassionate appointment. It is submitted that at the time of the expiry of the petitioner’s mother, a scheme for compassionate appointment to support the family of employees dying while in service was in force in the company. However, it is contended that even according to the said scheme, the scheme would be applicable only in case the deceased employee is the sole breadwinner of the family and not otherwise. It is submitted that the said scheme also was retracted from 31.05.2002 and there was no scheme for compassionate appointment in force at the time when the petitioner’s request for compassionate appointment was considered. It is contended that Ext.P7 reopens compassionate appointments prospectively from 01.11.2014 to the legal heirs of deceased employees where the death occurs on or after 01.11.2014. It is submitted that the petitioner could not claim compassionate appointment on the strength of Ext.P7 which is, admittedly, prospective in nature. It is submitted that even if the petitioner’s application had been considered in accordance with the scheme in force at the time of the death of the petitioner’s mother, the ``` WP(C) NO. 4927 OF 2018 ``` ``` 7 ``` petitioner’s father was gainfully employed at the relevant time and that the petitioner could not have been entitled even had it been considered. Annexure R1(a) scheme of compassionate appointment dated 07.11.2000 as well as Annexure R1(b) by which the scheme have been withdrawn are produced by the respondents. The learned counsel for the respondents also places reliance on a decision of the Apex Court in **Fertilizers and Chemicals Travancore Ltd. & Ors. v. Anusree K.B.** in Civil Appeal No.6958/2022 dated 30.09.2022. 8. A reply affidavit has also been placed on record by the petitioner contending that the petitioner was a minor at the time of death of her mother and the scheme itself allowed for a minor to apply after attaining majority. It is further contended that the petitioner’s father had remarried soon after her mother’s death and that the fact that he was gainfully employed had not inured to the benefit of the petitioner. 9. I have considered the contentions advanced on either side at considerable length. It is not in dispute that the petitioner’s mother had died in harness on 02.06.2000 and at the relevant time, the petitioner ``` WP(C) NO. 4927 OF 2018 ``` ``` 8 ``` was only 8 years old. The application for compassionate appointment was made on 07.05.2010 as evidenced by Ext.P4. By the time the said application had been filed, the scheme for compassionate appointment had admittedly been withdrawn by the respondents. Ext.P6 order of rejection was therefore issued specifically stating that the scheme for compassionate appointment stood withdrawn by proceedings dated 01.06.2002. The scheme was, admittedly, reintroduced only by Ext.P7 dated 12.11.2014. A reading of Ext.P7 would show that the scheme introduced in 2014 is prospective in operation and is intended for the consideration of applications made by dependents of persons whose death takes place on or after 01.11.2014. The contention of the petitioner is that the petitioner's claim for compassionate appointment ought to be considered taking note of the factual situations which existed as on the date of death of her mother but in terms of the scheme which is prospectively brought into force with effect from 01.11.2014. I am of the opinion that the compassionate appointment being only a concession extended to dependents of employees who died in harness, the same is liable to be acted upon only if the specific conditions ``` WP(C) NO. 4927 OF 2018 ``` ``` 9 ``` provided in the scheme are complied with. Even if the petitioner was eligible to apply for compassionate appointment at the time of her mother's death, she would not have been eligible since her mother was not the sole earning member of the family at the time of her death. When the application was duly filed after the petitioner attained majority, there was no scheme in force. The scheme introduced in 2014 was only prospective in operation. Since what is being considered is not a vested right of the petitioner for public employment, the rejection of her claim, in the facts of the case, cannot be held to be illegal. This writ petition thus fails and the same is, accordingly, dismissed. ``` Sd/- ``` ## **`ANU SIVARAMAN`** ``` JUDGE ``` ``` NP ``` ``` WP(C) NO. 4927 OF 2018 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 4927/2018`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`PHOTOCOPY OF THE ORDER DATED 27.11.1986`**| ||**`ISSUED BY 2ND RESPONDENT.`**| |**`EXHIBIT P2`**|**`PHOTOCOPY OF THE APPLICATION DATED 25.10.2002`**| ||**`SUBMITTED BY THE FATHER OF THE PETITIONER.`**| |**`EXHIBIT P3`**|**`PHOTOCOPY OF THE S.S.L.C. CERTIFICATE OF THE`**| ||**`PETITIONER.`**| |**`EXHIBIT P4`**|**`PHOTOCOPY OF THE APPLICATION DATED 07.05.2010`**| ||**`SUBMITTED BY THE PETITIONER TO THE 1ST`**| ||**`RESPONDENT.`**| |**`EXHIBIT P5`**|**`PHOTOCOPY OF THE JUDGMENT DATED 20.08.2010 IN`**| ||**`W.P.(C) NO.26616 OF 2010.`**| |**`EXHIBIT P6`**|**`PHOTOCOPY OF THE LETTER DATED 08.11.2010`**| ||**`ISSUED BY THE 1ST RESPONDENT.`**| |**`EXHIBIT P7`**|**`PHOTOCOPY OF THE SCHEME FOR COMPASSIONATE`**| ||**`APPOINTMENT ISSUED BY THE 1ST RESPONDENT`**| ||**`DATED 12.11.2014.`**| |**`EXHIBIT P8`**|**`PHOTOCOPY OF THE JUDGMENT DATED 09.12.2016 IN`**| ||**`W.P.(C) NO.22316 OF 2011 OF THIS HON'BLE`**| ||**`COURT.`**| |**`EXHIBIT P9`**|**`PHOTOCOPY OF THE REQUEST DATED 19.12.2016`**| ||**`SUBMITTED BY THE PETITIONER WITH SUPPORTING`**| ||**`DOCUMENTS BEFORE THE DEPUTY GENERAL MANAGER`**| ||**`OF THE 1ST RESPONDENT.`**| |**`EXHIBIT P10`**|**`PHOTOCOPY OF THE APPLICATION DATED 13.10.2017`**| ||**`SUBMITTED BY THE PETITIONER BEFORE THE 2ND`**| ||**`RESPONDENT.`**| |**`EXHIBIT P11`**|**`PHOTOCOPY OF THE LETTER DATED 20.01.2018`**| ||**`ISSUED BY THE 2ND RESPONDENT.`**| |**`RESPONDENTS’ EXHIBITS`**|| |**`ANNEXURE R1(a)`**|**`PHOTOCOPY OF THE APPLICATION DATED 13.10.2017`**| ||**`SUBMITTED BY THE PETITIONER BEFORE THE 2ND`**| ||**`RESPONDENT.`**| |**`ANNEXURE R1(b)`**|**`PHOTOCOPY OF THE LETTER DATED 20.01.2018`**| ||**`ISSUED BY THE 2ND RESPONDENT.`**|