WA No.1394/2020 (A rising out of the judgment dated 05-03-2020 in W.P(C) No.2928 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** **WA.No.1394 OF 2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 2928/2020(M) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2 IN W.P(C):** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI.** - **2 THE DIRECTOR GENERAL DIRECTORATE, CENTRAL RESERVE POLICE FORCE, CENTRAL GOVERNEMNT OFFICE COMPLEX, LODHI ROAD, NEW DELHI-110 003.** - **3 THE INSPECTOR GENERAL OF POLICE (ADMINISTRATION) DIRECTORATE GENERAL, CENTRAL RESERVE POLICE FORCE, NEW DELHI-110 003.** - **4 THE DEPUTY INSPECTOR GENERAL OF POLICE GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, PALLIPURAM, THIRUVANANTHAPURAM-695 316.** - **5 THE DEPUTY INSPECTOR GENERAL OF POLICE GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, GOLF COURSE ROAD, AJMIR, RAJASTHAN-305 001.** - **6 THE COMMANDANT 157 BATTALION CENTRAL RESERVE POLICE FORCE, ADITYA PUR, JAMSHEDPUR, JHARKHAND-832 109.** ## **BY ADV. SMT.MINI GOPINATH, CGC** W.A No.1394/2020 2 ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT:** **LETHA BAI.T W/O. LATE HC/GD. D VIJAY KUMAR, QUARTER NO.29, TYPE-1, A-SECTOR, GROUP CENTRE PALLIPURAM, THIRUVANANTHAPURAM-695 316.** **R1 BY ADV. SRI.S.VISHNU SMT.O.M.SHALINA, CGC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1394/2020 3 ## **ALEXANDER THOMAS & K.BABU, JJ.** ------------------------------------ W.A No. 1394 of 2020 (A _rising out of the judgment dated 05-03-2020 in W.P(C) No.2928 of 2020_ ) ------------------------------------ Dated this the 7[th] day of April, 2021 ## **JUDGMENT** ## **K.BABU, J.** The judgment dated 05-03-2020 of the learned Single Judge of this Court, in W.P(C) No.2928/2020, is under challenge in this intra court appeal filed under Sec.5 of the Kerala High Court Act. 2. The Union of India represented by the Secretary, Ministry of Home Affairs and the other official respondents in the Writ Petition are the appellants. The sole respondent is the writ petitioner. 3. We have heard Smt.O.M.Shalina, learned Central Government Counsel appearing for the appellants and Sri.S.Vishnu, learned counsel appearing for the respondent. 4. The respondent preferred the above referred writ petition with the following prayers: > “ _(a) A writ of mandamus or other appropriate writ, order or direction directing the respondents to consider granting compassionate_ W.A No.1394/2020 4 _appointment to the petitioner by granting age relaxation as provided for in the consolidate Instructions on Compassionate Appointment issued by the Department of Personnel & Training, Government of India (Ext.P15);_ - _(b) A writ of certiorari or other appropriate writ or order to call for the records leading to the issue of Ext.P8, P10, P13 and P14 and set aside Ext.P8, P10, P13 and P14._ - _(c) A writ of mandamus or other appropriate writ, order or direction directing the respondents to reconsider the claim of the petitioner for compassionate appointment after granting age relaxation._ - _(d) Any other further relief or order as this Hon'ble Court may deem fit and proper to meet the ends of justice._ - _(e)_ - _Award the cost of these proceedings.”_ 5. The respondent is the widow of one D.Vijay Kumar, who expired on 21-04-2018 while serving in the CRPF as Head Constable. Vijay Kumar left behind his wife (respondent herein), his minor son aged 11 years and his parents. Claiming that she is the sole bread winner of her family, the respondent submitted Ext.P2 application on 26-06-2018, seeking compassionate appointment, along with all required documents. The competent authority rejected her claim by way of Ext.P8 letter stating that her claim could not be processed as she was aged above 40 years. 6. The respondent has completed plus two course and secured qualification in Typewriting. The respondent has claimed in her application that she is finding it difficult to earn the livelihood for herself and her family. The respondent also pointed out that, W.A No.1394/2020 5 vacancies in clerical job, are available in the department so as to accommodate her. According to the respondent, the scheme of compassionate appointment followed by the department concerned permits the competent authorities to relax the upper age limit for the purpose of providing compassionate employment. 7. The appellants resisted the claim of the respondent on the ground that, she was over aged at the time of making application. According to the appellants, the upper age limit, prescribed by the Rules, is 25 years and the same is relaxable only by 15 years and as the respondent has crossed 40 years of age she is not eligible to be considered. The appellants further stated that the respondent was given a temporary placement, as store keeper in the Master Canteen as per Anx.R1 order, in February, 2020. 8. After appreciating the rival contentions and on the basis of the materials placed before the court, learned Single Judge allowed the writ petition and quashed Ext.P8, P10, P13 and P14 and directed the appellants to reconsider the representation of the respondent after relaxing the upper age limit and issue appropriate order as expeditiously as possible, at any rate, within a period of two months W.A No.1394/2020 6 from the date of receipt of a copy of the judgment. 9. The respondent, widow of a Head Constable employed in the CRPF, has approached the appellants seeking compassionate employment on the basis of Anx.A2/Ext.P15 scheme followed by the department, claiming that her husband left the family in an indigent circumstance. The husband of the respondent died on 21-04-2018. She submitted Ext.P2 application seeking compassionate employment on 26-06-2018 stating that she is the sole bread winner of her family. The deceased left behind the respondent-the widow, their minor son aged 11 years and his parents. Her claim has been rejected, as per Ext.P8, by the appellants stating that she was over aged as she has crossed 40 years at the time of making the application. 10. The purpose of providing employment to the dependant of a government servant dying in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such W.A No.1394/2020 7 appointments. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. None of these considerations can operate when the application is made after a long period of time. _{Vide_ _**State of Manipur v. Md.Rajaodin** [2003 (7) SCC 511],_ _**State of U.P and Others v. Paras Nath** [1998 (2) SCC 412],_ _**Umesh Kumar Nagpal v. State of Haryana and others**_ [1994 (4) SCC 138]} 11. Coming to the facts of this case, the following questions are relevant. (i) Does the scheme for compassionate employment, framed and followed by the appellants, mandate that the upper age limit of an applicant cannot anyway be relaxed above 40 years ? (ii) Is the respondent in dire need of an employment to alleviate the distress of the family consequent to the untimely death of her husband ? 12. It is common ground that the deceased left behind the respondent-the widow, their minor son aged 11 years and his old aged parents. It is also common ground that the respondent has W.A No.1394/2020 8 submitted Ext.P2 application before the appellants on 26-06-2018, just two months after the death of her husband. She had no gainful employment at the time of the unfortunate demise of her husband. 13. The appellants contended that as per clause 6(B)(a) of Ext.P15 (Anx.A2), the upper age limit, prescribed by the Rules, can be relaxed only by 15 years and accordingly the age limit, for compassionate appointment for widows, is allowed to be relaxed up to the age of 40 years and no more relaxation is possible. 14. The learned counsel for the appellants contended that, the learned Single Judge omitted to take into account the relevant Standing Order, which specifically states that the age limit, for compassionate appointment for widows, can only be relaxed upto the age of 40 years. The learned counsel for the appellants further submitted that Anxs.A1 to A4 produced along with this appeal will substantiate their contentions. 15. The learned counsel for the respondent, per contra, submitted that, Anxs.A1 to A4 are to be read along with Ext.P15 scheme for compassionate employment which was issued with the approval of the Department of Personnel and Training, Government W.A No.1394/2020 9 of India (DoP&T). Annexure A2 is a copy of Ext.P15, relied on by the learned Single Judge. Annexure A1 is a true copy of the Standing Order No.5/2001 regarding compassionate appointment. Annexure A3 is a communication dated 30-04-2015 issued by the Ministry of Home Affairs, delegating the powers of relaxations, in case of compassionate appointment, to the DsG of CAPFs and AR. Annexure.A4 is a communication dated 06-09-2016 in continuation of Anx.A3. 16. Annexure A2/Ext.P15 is an Office Memorandum dated 16-01-2013 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, consolidating the scheme of compassionate appointment under the Central Government. 17. Clause 6(B) of Anx.A2/Ext.P15, which deals with relaxations, reads thus: |**_(a)_**<br>**_Note I_**<br>**_Note II_**<br>**_(b)_**<br>**_(c)_**|_Upper Age limit could be relaxed wherever found to be_| |---|---| ||<br>_necessary_<br>_. The lower age limit should, however, in no case be_<br>_relaxed below 18 years of age._<br>_Age eligibility shall be determined with reference to the date of_<br>_application and not the date of appointment;_<br>_Authority competent to take a final decision for making_<br>_compassionate appointment in a case shall be competent to_<br>_grant relaxation of upper age limit also for making such_<br>_appointment._<br>_xxx_<br>_xxx_<br>_xxx_<br>_xxx_<br>_xxx_<br>_xxx_| W.A No.1394/2020 10 _**(d)** xxx xxx xxx”_ 18. A reading of the relevant portion of Clause 6(B)(a), extracted above, indisputably leads us to the conclusion that, in the case of compassionate appointments upper age could be relaxed wherever found to be necessary and resultantly, there is no ceiling limit. 19. The learned Central Government Counsel relied on Anx.A3 and Anx.A4 to contend that, in the case of a widow, the upper age limit can be relaxed only upto 40 years. Annexure A3 is a communication dated 30-04-2015 issued by the Ministry of Home Affairs, Government of India, delegating the powers of relaxation to DsG of CAPFs and AR. It appears that Annexure A3 was issued with a view to reduce the delay in processing requests for compassionate appointments in the various departments concerned. Annexure A3 shows that the competent authority in the Ministry of Home Affairs has decided to enhance 'the delegated power of relaxations' with a view to expedite the processing of applications under the scheme for compassionate appointments for Group C posts. The relevant portion of Anx.A3 is extracted below: W.A No.1394/2020 11 ## _**“Government of India Ministry of Home Affairs**_ ## _**PERS-II**_ ## _Subject:-_ _**Scheme for Compassionate Appointment for Group 'C' posts in CAPFs & AR- delegation of power-reg.**_ _Reference this Ministry's UO No.I-45023/6/2008/Pers-II dated 23[rd] March, 2010 vide which the DsG of CAPFs and AR were delegated power to grant the following relaxations in case of compassionate appointments to be made by the respective Force as per DoP&T's relevant scheme/instructions up to a maximum of the following limit:-_ _xxx xxx xxx xxx xxx xxx_ _2. Relaxation in the above parameters beyond aforesaid limit has so far been considered and granted by MHA on case to case basis._ _3. With a view to reduce the channel of disposal and the time taken to complete compassionate appointment cases, it has been decided by the Competent Authority to enhance the aforesaid delegated limit of relaxation of the DsG of CAPFs and AR to the following extent:-_ |**Parameter**|**Height**|**Chest**|**Age**|**Weight**|**Education**<br>**qualification**| |---|---|---|---|---|---| |**Maximum**<br>**relaxation**<br>**(After**<br>**enhancement)**|7.5 Cms|06 Cms<br>Unexpanded<br>05 Cms<br>Expanded|15 Years. In case of<br>a widow upto 40<br>years.|Maximum<br>possible|xxx xxx xxx| |_4._<br>_xxx_<br>_5._<br>_xxx_|_xxx_<br>_xxx_|_xxx_<br>_xxx”_|||| Annexure A3 only deals with the 'limit of relaxation' delegated to officers of different cadres in the departments concerned. It is seen that enhancement of delegated power of relaxation has been done with a view to reduce the delay in disposal of the cases dealing with compassionate appointments by the competent authority in the Ministry of Home Affairs. 20. Annexure A4, another communication dated 06-09-2016 W.A No.1394/2020 12 issued under the caption Signal/Selo by Digcent (Rectt) Dte, where reference is made to Anx.A3, also deals with the delegated power of granting relaxations by various officers in the department. 21. It is indisputably evident that Anxs.A3 and A4 refer to delegation of power of relaxation to the officers in different cadres under the Ministry of Home Affairs. Both, Anxs.A3 and A4, specifically state that the recruitment in compassionate appointment cases will be strictly governed by the instructions issued by DoP&T from time to time. 22. Annexure A2/Ext.P15 is the existing guidelines issued by the DoP&T with regard to compassionate appointment. The competent authority in the Ministry of Home Affairs, Government of India retains the power to relax the upper age limit in the case of compassionate employment as per Anx.A2/Ext.P15. 23. The learned Single Judge relying on Anx.A2/Ext.P15 directed the appellants to reconsider the representation of the respondent after relaxing the upper age limit. There is nothing on record to show that Anx.A2/Ext.P15 guidelines issued by the Ministry of Personnel, Public Grievances and Pensions (Department of W.A No.1394/2020 13 Personnel & Training) have been changed. Those guidelines are still in force. 24. We are of the considered view that Clause 6(B)(a) of Anx.A2/Ext.P15 governs relaxations in the upper age limit for compassionate employment in the case of the respondent wherein it is specifically stated that the upper age limit can be relaxed wherever found to be necessary. The challenge of the appellants, that a widow aged 40 years cannot be considered for compassionate employment, is not tenable. 25. The next point to be considered is whether the respondent, has an immediate need of employment to tide over the vagrancy faced by her family with the death of her husband. 26. The relevant pleadings regarding the indigent condition of the respondent are contained in paragraph Nos.3 & 7 of the writ petition, which are extracted below: “ _3. It is submitted that the late employee left behind as his legal heirs, his widow i.e. the petitioner who was aged 42 and their son aged 11 at the time of death. The only source of income for the family was the monthly salary of the deceased employee. Thus the petitioner and her son were fully dependent on the late employee for their livelihood and sustenance. On account of the death of the employee, the petitioner and her son were deprived of their only source of livelihood and were in abject poverty. In such circumstances, the petitioner applied for compassionate appointment. A true copy of the request dated 26-06-2018 is produced and marked as Ext.P2._ W.A No.1394/2020 14 _4. xxx xxx xxx 5. xxx xxx xxx 6. xxx xxx xxx_ _7. In the meanwhile, before receipt of Ext.P8, when it came to the notice of the petitioner that vacancy was available for clerical job, the petitioner again represented pointing out that she has completed Plus Two and Typewriting. It was also pointed out that she had an outstanding loan liability besides having to take care of the husband's aged father and mother who were 73 and 68 respectively along with 11 year old child and she was having no source of livelihood. A true copy of the representation dated 25-09-2019 is produced and marked as Ext.P9.”_ 27. There is no challenge to the abovesaid pleadings in the counter submitted from the part of the appellants. The competent authority of the appellants had noted the indigent condition of the respondent while issuing Ext.P14 communication, the relevant portion of which is extracted below: _“An application dated 30-07-2019 (Copy enclosed) has been received from Smt.Latha Bai T., W/o No.951161767 late HC/GD D.Vijaya Kumar of 157 Bn CRPF vide which it has been informed that her husband expired on 21-04-2018 and she has to take care of her father/mother in law, 11 years old child and she has to pay outstanding home loan amounting to Rs.18 lakhs. Due to the reasons, she has requested for her appointment for the post of HC/Min or CT/Peon on compassionate grounds. She has further stated that her age is 43 years at present. In this connection it is intimated that condonation in upper age limit to a widow can be granted by the competent authority upto the age of 40 years. Accordingly, now she is overage for appointment in CRPF. As such, may examine her case and a suitable reply be given to the applicant accordingly.”_ ## 28. Exhibit P14 throws further light to the indigent condition of the respondent. It is also relevant to note that on 04-02-2020 the respondent accepted a temporary job provided to her for 89 days on a daily pay of Rs.359/-, which also projects her immediate need for W.A No.1394/2020 15 employment to meet both ends. The materials placed above make it abundantly clear that the respondent is in imminent need of a compassionate employment to mitigate the hardship caused to her family on account of unexpected death of her husband while in service. 29. We are of the considered view that the respondent has satisfied all the requirements for getting employment under the scheme for compassionate appointment followed by the appellants. 30. We are of the firm view that the learned Single Judge rightly and justly recorded a finding to the above effect. We are in full agreement with conclusions arrived at in the impugned judgment dated 05-03-2020 of the learned Single Judge in these writ proceedings. Hence the orders and directions rendered in the W.P(C) do not deserve interference in this intra court appeal. 31. We note that the respondent has been waiting for a very long time after submission of Ext.P2 application on 26-06-2018. Hence it is ordered that the appellants will comply with the directions and orders in the judgment dated 05-03-2020 in W.P(C) No.2928/2020, without any further delay, at any rate within six W.A No.1394/2020 **==> picture [11 x 8] intentionally omitted <==** weeks' from the date of receipt of a copy of this judgment. So the impugned judgment in the Writ Petition (C) will stand modified as above. With the above directions and observations, the Writ Appeal will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **K.BABU, JUDGE** KAS W.A No.1394/2020 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A1** **STANDING ORDER NO.5/2001 REGARDING COMPASSIONATE APPOINTMENT** **ANNEXURE A2 OFFICE MEMORANDUM DATED 16-01-2013 ISSUED BY GOVT.OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DoPT REGARDING CONSOLIDATED INSTRUCTION ON COMPASSIONATE APPOINTMENT** **ANNEXURE A3 UO No.45020/3/2015-PERS II DATED 30-042015 OF MINISTRY OF HOME AFFAIRS ANNEXURE A4 SIGNAL/SELO ISSUED BY DIGCENT (RECTT) Dte DATED 06-09-2016 REGARDING RELAXATION 1-6**