Santoshkumar v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** ## **WP(C).No. 7542 of 2010** ## **PETITIONER/S:** **SANTHOSHKUMAR, “SUBHAPTHI” N.I.T.C. (P.O), KOZHIKODE - 673 601. BY ADVS. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN** ## **RESPONDENT/S:** |**1**|**UNION OF INDIA- REPRESENTED BY**| |---|---| ||**THE PRINCIPAL SECRETARY TO GOVERNMENT,**| ||**MINISTRY OF HUMAN RESOURCES DEVELOPMENT DEPARTMENT,**| ||**GOVERNMENT OF INDIA,, NEW DELHI - 110 001.**| |**2**|**NATIONAL INSTITUTE OF TECHNOLOGY**| ||**CALICUT, DEEMED UNIVERSITY,, N.I.T CAMPUS .P.O,,**| ||**CALICUT - 673 601, REPRESENTED BY ITS, REGISTRAR.**| |**3**|**THE REGISTRAR**| ||**NATIONAL INSTITUTE OF TECHNOLOGY CALICUT,**| ||**DEEMED UNIVERSITY, N.I.T CAMPUS .P.O,**| ||**CALICUT - 673 601.**| |**4**|**THE DIRECTOR**| ||**NATIONAL INSTITUTE OF TECHNOLOGY CALICUT,**| ||**DEEMED UNIVERSITY, N.IT CAMPUS P.O,**| ||**CALICUT - 673 601.**| ||**BY ADVS.**| ||**SHRI.P.VIJAYAKUMAR, ASG OF INDIA**| ||**SRI.MILLU DANDAPANI**| ||**SRI.T.P.M.IBRAHIM KHANASST.S.G OF INDI**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7542 of 2010 2** ## **J U D G M E N T** ## This writ petition is filed with the following prayer:- _(i) To issue a writ of mandamus or any other appropriate Writ, order or direction, directing the respondents to appoint the petitioner under the dying in harness scheme to one of the existing vacancies of driver under the 2[nd] respondent or to the existing vacancy of Vehicle Cleaner under the 2[nd] respondent forthwith;_ ## Amended as per Order dated 04.01.2019 in I.A. No.1 of 2019 in ## W.P.(C) No.7542/2010. _i(a) to issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P19 order dated 04.12.2018 and quash the same._ _i(b) to declare that Ext.P19 order is illegal, arbitrary, discriminatory and hence null and void._ _(ii) to declare that the petitioner is entitled to be given appointment either as driver or as Vehicle Cleaner in one of the existing vacancies under the dying in harness scheme; And_ ## 2. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 3. The petitioner, who is the son of late Sivasankara Pillai who was an Assistant Engineer in the Engineering Unit of the 2[nd] respondent, has submitted that he was entitled to compassionate appointment as dependant of the employee who died in harness. It is stated that petitioner's father passed away on 01.09.1997, while in service, and the petitioner had submitted Ext.P1 application dated **WP(C).No. 7542 of 2010 3** 30.03.1998 seeking appointment as Driver, Lower Division Clerk, Lower Division Store Keeper, L.D. Steward or any other suitable post. It is stated that the petitioner was required to attend a written test and to report with all original certificates to prove date of birth and educational qualifications. It is stated that the proficiency test in driving of heavy vehicles was conducted, in which the petitioner could not fair satisfactorily. Ext.P3 reply was accordingly issued on 16.07.1998 informing the petitioner that he cannot be employed as driver but his claim for compassionate appointment will be considered as and when vacancy arises in the alternate category as per reference in his application. 4. The petitioner submitted Exts.P4 to P6 representations seeking reconsideration of his claim for compassionate appointment. The petitioner contends that thereafter, Ext.P7 request was made and on the basis of Ext.P7(a) communication the petitioner was engaged as vehicle cleaner on daily wage basis. It is stated that though other persons had been granted compassionate appointments subsequently, the petitioner's claim was not considered. It is contended that long thereafter, Ext.P15 notice was served on petitioner's mother requiring her to forward an application for compassionate appointment. The petitioner has submitted Ext.P16 application dated 05.05.2015, pursuant to which he was directed to appear for a counseling by **WP(C).No. 7542 of 2010 4** Ext.P17 communication dated 11.08.2017. It is submitted that even thereafter, since no reply was given to the petitioner, he had approached the respondents preferring Ext.P18 representation. It is stated that Ext.P19 reply had been issued by the respondents stating that petitioner's application was considered at appropriate level and found that compassionate appointment cannot be offered. The learned counsel for the petitioner submits that no reason of whatever nature supports Ext.P19 rejection and that the rejection is bad on that short ground. It is contended that the petitioner had been engaged on daily wages as cleaner as well as driver by the respondents, and thereafter the contention that the petitioner is not proficient is completely erroneous. It is also contended that though several appointments have been made on compassionate grounds after petitioner's application had been submitted, the petitioner's request was not considered. 5. A counter affidavit and an additional counter affidavit had been placed on record by respondents 2 to 4. It is stated in the counter affidavit that all the dying in harness appointments mentioned by the petitioner are on part time basis only and the petitioner's request for appointment had been considered favourably and he had been called for a proficiency test for appointment as driver. It is stated that the petitioner had failed in the said test and therefore he ## **WP(C).No. 7542 of 2010 5** had been issued with Ext.P10. It is stated that the petitioner did not raise any claim for six years thereafter. 6. In the additional counter affidavit filed on behalf of respondents 2 to 4, it is contended that the petitioner had submitted a representation before the Ministry of Human Resource Development after Ext. P3 for the first time on 14.8.2004 and the petitioner's claim had been considered. It is stated that a detailed reply had been issued to the Ministry by the respondents and petitioner was also given a daily wage employment as vehicle cleaner. It is stated that the Board had taken a decision to consider all the claims for appointment under the compassionate appointment scheme and petitioner's mother was also required to forward an application. It is stated that all the applications received were considered and it was found that the petitioner does not belong to the category of dependant of an employee, who can be considered for a compassionate employment. In view of the fact that the petitioner had been offered appointment and he could not satisfy the respondents that he had proficiency in driving, the said offer was withdrawn by Ext.P3. Thereafter, the petitioner stayed silent for six years. It is contended by the learned counsel for the respondents that this by itself would show that the family of the deceased employee was not destitute and were able to survive and as such, the claim of the petitioner for **WP(C).No. 7542 of 2010 6** compassionate appointment was not liable to be allowed. Relying on the decisions of the Apex Court in **Umesh Kumar Nagpal v. State of Haryana and Others [1994(4) SCC 138]** , **Local Administration Department and Another v. M.Selvanayagam alias Kumaravelu [2011(13)SCC 42] and State of J& K and Others v. Sajad Ahmed Mir [2006 (5) SCC 766],** it is contended that the compassionate appointments are exceptions to the normal rule of appointment and once it is proved that inspite of the death of the breadwinner, the family was able to survive for a substantial period, the claimant under the scheme can have no inalienable right to appointment in public service. 7. I have considered the contentions advanced. It is true that Ext.P19 order of rejection does not state any reason for the rejection of the claim raised by the petitioner. However, it is the case of the respondents which stand uncontroverted that after Ext.P3 rejection of the claim of the petitioner for appointment as driver on 16.7.1998, the petitioner did not raise any further claim or point out any vacancy to which he could be appointed till the year 2004. The petitioner now contends in this writ petition that several persons had been granted Part Time appointment as Sweepers in the respondent institution. However, there is nothing on record to show that any claim for any appointment had been raised by the petitioner at any time between **WP(C).No. 7542 of 2010 7** 16.7.1998 and 5.8.2004. It is therefore apparent that the family of the deceased employee had been able to survive in a reasonable manner for a period of six years. It is true that thereafter, a claim had been raised by the petitioner and his application was also considered pursuant to Ext.P17. However, the petitioner was informed that his application is not liable to be considered in terms of the orders in force. In view of the fact that the request is for compassionate appointment, since the petitioner has no explanation as to having remained silent from the date of Ext.P3 till the year 2004, I am of the opinion that the discretionary remedy of quashing Ext.P19 and directing a reconsideration is not liable to be exercised in the instant case. The writ petition therefore fails. The same is accordingly dismissed. ## **SD/-** ## **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No. 7542 of 2010 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION NO.P113024/96 DATED 06.06.1998 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE REPLY DATED 16.07.1998 ISSUED BY THE PRINCIPAL, N.I.T.C., CALICUT.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 07.03.2006.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR HUMAN RESOURCES DEVELOPMENT DATED 08.05.2006 EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 13.03.2007 EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR HUMAN RESOURCES DEVELOPMENT DATED 05.08.2004. EXHIBIT P7 A TRUE COPY OF THE REPLY DATED 10.02.2010 WAS RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE MINISTER FOR HUMAN RESOURCES DEVELOPMENT. EXHIBIT P8 TRUE COPY OF THE ORDER NO.P1/555/2004 DATED 18.01.2005 ISSUED BY THE 2ND RESPONDENT` EXHIBIT P9 TRUE COPY OF THE ORDER DATED 28.12.1999 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 06.09.2002 ISSUED BY THE 2ND RESPONDENT.** ## **WP(C).No. 7542 of 2010 9** **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 20.02.2003 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 13.06.2003 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT ON 10.12.2009.** - **EXHIBIT P14 TRUE COPY OF THE REPLY DATED 12.01.2010 ISSUED BY THE PUBLIC INFORMATION OFFICER.** - **EXHIBIT P15 TRUE PHOTOCOPY OF THE NOTICE NO.P1/1370/95/VOL.III DATED 07.04.2015 ISSUED BY THE NATIONAL INSTITUTE OF OF TECHNOLOGY CALICUT TO THE MOTHER OF THE PETITIONER.** - **EXHIBIT P16 TRUE PHOTOCOPY OF THE BIO-DATA SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P17 TRUE PHOTOCOPY OF THE OFFICE ORDER DATED 11.08.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P18 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 05.04.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P19 TRUE PHOTOCOPY OF THE ORDER NO.P1/1370/1995/173 DATED 25.04.2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P20 EXT.P15 TRUE COPY OF THE ORDER DATED 28-42010 ISSUED BY THE IIM,KOZHIKODE.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R2(A) PHOTOCOPY OF ORDER NO. F.9-3/95-U.3 DATED 26-6-2002, RAFERED TO IN THE COUNTER AFFIDAVIT.** **EXHIBIT R2(B) TRUE COPY OF LETTER BEARING DY NO. 3519/DC/MHRD/2004 DATED 14-8-2004** **EXHIBIT R2(C) TRUE COPY OF LETTER BEARING NO. P1/1370/95 DATED 6-9-2004** **EXHIBIT R2(D) TRUE COPY OF LETTER BEARING NO.P1/1370/95 DATED 18-01-2005.** |**WP(C).No. 7542 of 2010 10**|**WP(C).No. 7542 of 2010 10**| |---|---| |**EXHIBIT R2(E)**|**TRUE COPY OF PROCEEDINGS NO. P1/1370/95**| ||**DATED 08-03-2006**| |**EXHIBIT R2(F)**|**TRUE COPY OF NOTICE BEARING NO.**| ||**P1/1370/95/VOL.III DATED 07-4-2015**| |**EXHIBIT R2(G)**|**TRUE COPY OF APPLICATION SUBMITTED BY THE**| ||**PETITIONER BEFORE THE DIRECTOR, NIT,**| ||**CALICUT AGAINST EXHIBIT R2(F) DATED 20-04-**| ||**2015.**| |**EXHIBIT R2(H)**|**TRUE COPY OF OFFICE ORDER BEARING NO.**| ||**P1/1370/1995/173 DATED 11-08-2017**| |**EXHIBIT R2(I)**|**TRUE COPY OF LETTER NO. F.18-7/2017-TS-III**| ||**DATED 07-07-2017**| |**EXHIBIT R2(J)**|**TRUE COPY OF LETTER BEARING NO.**| ||**P1/1370/1995/173 DATED 25-04-2018.**| ||**// TRUE COPY //**| ||**PA. TO JUDGE**|