Karnataka High Court
Miss Roopa Datta Adiandhre vs Union Of India on 8 March, 2018
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
W.P. NO.62206/2009 (S-RES)
BETWEEN :
MISS. ROOPA DATTRA ADIANDHRE,
AGE : 22 YEARS, OCCUPATION : NIL
CASTE: SCHEDULE CASTE,
CTS NO.3957, BLOCK NO.39,
BEHIND REX THEATRE,
KALI AMBRAI, BELGAUM -590001.
KARNATAKA.
....PETITIONER
(BY SRI.N.K. MARUTHIRAO, ADV.)
AND :
1. UNION OF INDIA,
THROUGH SECRETARY,
MINISTRY OF DEFENCE
NEW DELHI
2. DIRECTOR GENERAL OF INFANTRY/INF-6(PERS),
INTEGRATED HEADQUARTERS OF MINISTRY OF
DEFENCE (ARMY), SENA BHAVAN,
NEW DELHI - 110105.
3. THE COMMANDANT,
MARATHA LIGHT
INFANTRY CENTER,
PIN-900499,
BELGAUM -590009.
....RESPONDENTS
(BY SRI. HARISH S. MAIGUR, ADV. FOR R1,
SRI. GANGADHAR. S. HOSAKERI, ADV. FOR R1 TO R3)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER B/05183/COMPETENT AUTHORITY/
MLI/INF-6(PERS) DTD., 27.03.2008 PRODUCED AT
ANNEXURE-Q PASSED BY THE RESPONDENT NO.2 BY
ISSUING WRIT OF CERTIORARI AND A WRIT OF MANDAMUS
MAY KINDLY BE ISSUED TO THE RESPONDENTS TO HEAR
THE PETITIONER AND PASS SUITABLE ORDERS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the respondents.
2. The petitioner has sought for quashing of the impugned order passed by the respondent No.2 in No. B/05183/Competent Authority/MLI/Inf-6(Pers) DTD., 27.03.2008 as per Annexure-Q in rejecting the application for compassionate appointment by the petitioner.
3. The brief factual matrix that emanate from the records are that, the petitioner's father Datta Muthyalappa Adiandhre, who was serving as a cook under respondent No.3. During the service, he was :3: suffering from cancer, due to his illness, he could not serve in the army and took voluntary retirement on 31.12.2001 from the service of the respondent No.3 and later due to suffering from cancer, he died on 28.08.2003 after unsuccessful treatment.
4. The said person left behind his wife and two daughters and one son. Since the wife of the deceased was aged and illiterate, she could not make any application for compassionate appointment. Her son was very week and therefore, the petitioner - the eldest daughter preferred herself for appointment and she has submitted application for compassionate appointment to respondent No.3 and also to respondent No.1 on 30.11.2007, after she attained the age of majority. The said application was entertained and after so many communications and letter transaction, ultimately the impugned order was passed on 27.03.2008 as per Annexure-Q rejecting the application. :4:
5. The learned counsel for the petitioner has also produced various documents to show, the letter correspondence between the petitioner as well as the respondents. It is worth to refer certain letter correspondence in this regard between the petitioner and respondent No.3 in order to ascertain whether the respondents have applied their mind before passing the impugned order.
6. As per Annexure-H, a letter dated 06.12.2007 an endorsement was given to the petitioner stating that she has filed the application for appointment on compassionate ground on 24.11.2007. It is further stated in the said letter that, as the father of the petitioner retired from the service on 31.12.2001, and he died after the retirement i.e., on 28.08.2003, therefore, the family members are not entitled for appointment on compassionate grounds. Even after passing of the this Order, it appears, further letters have been entertained. As per Annexure-J, the letter :5: dated 17.12.2007, the petitioner wrote a letter to the Commanding Officer, Maratha LIRC, Belgaum for reviewing of the order passed earlier date, again on 17.01.2008 vide Annexure-K, vide letter, an intimation was given stating that, the earlier order dated 06.12.2007 could not be reviewed. Having done so, further letter of correspondent has been entertained by the respondent vide letter dated 07.02.2008 as per Annexure-L in No.Tel Mil :2432348/6654/ Q6549/Ci, that letter was addressed to the petitioner stating that, she has made application on 21.01.2008 seeking for reconsideration of her application, at paragraph No.2 of the said letter further says that, the petitioner was advised to report to the Lieutenant Colonel, QM for Commandant on 11.02.2008 at 11.00 hours along with all necessary documents held with her with complete information which she requires and she also been provided with all information. On 11.02.2008, as per letter Annexure-M, it is stated that an application as per :6: Annexure to CPRO 3/99 for employment on compassionate ground was provided to her and therefore, once again it appears, the impugned order was passed on 27.03.2008.
7. The above circumstances clearly indicate that, even after rejecting of the prayer for compassionate appointment earlier, on humanitarian ground, it appears, further communications have been entertained by respondent No.3 and subsequently an order was passed on 27.03.2008. The order if carefully perused, it shows that, the compassionate application was rejected mainly on the ground that, the family had been able to manage for more than five years after the death of the deceased and it should be taken as adequate proof that the family had some dependable means of subsistence. Therefore, on that ground alone, the application came to be rejected.
8. It is seen from the compassionate appointment Rules, on medical grounds, the scheme for :7: compassionate appointment under Central Government was issued by the Central Government in OM No.14014/6/94-Estt.(D) dated 09/10/1998. As per the said scheme at Rule No.9, which refers how the belated requests for compassionate grounds can be considered. Which reads as follows:
"9. BELATED REQUESTSS FOR COMPASSIONATE APPOINTMENT
(a) Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requests it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some :8: dependable means of subsistence.
Therefore, examination of such cases
would call for a great deal of
circumspection. The decision to make
appointment on compassionate grounds in such cases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned.
(b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration.
(c) The onus of examining the penurious condition of the dependent family will rest with the authority making compassionate appointment (Para 4 of O.M. No.14014/3/2011-Estt.(D) dated 26.07.2012.
On plain reading of the above said provision, it is clear that, even belatedly applications can be entertained and compassionate appointment can be :9: provided by treating a particular case as a special case, if circumstances warrant.
9. Of course, the said provision also says the fact that, the family has been able to manage somehow for many years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, the said provision also clarifies that, while entertaining the belated applications apart from considering the dependable means of subsistence, the authorities are also empowered to consider the peculiar circumstances of the family and whether the said family falls under any category of a special case, inspite of delay, whether any compassionate appointment can be granted ?
10. Sub clause (b) also makes it very clear that, the requests for compassionate appointment if belated or not, may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of : 10 : consideration. Therefore, the circumstances disclose that, after filing of the application, the personal hearing was also given to the petitioner and many numbers of materials have been collected with regard to the family and thereafter, the impugned order was passed. But, except stating that, the application is belated and the family has been able to manage for those years and that should be taken as adequate proof that the family had some dependable means of subsistence, except stating that, no other circumstances have been considered, whether the said case falls under any specific category. Therefore, the said special provision has not been properly understood before passing of the impugned order by the respondents. When belated applications are filed, as per Rule 9, the examination of the said cases call for great deal of circumspection. Therefore, apart from the delay, all the other circumstances also should have been seen by the respondents before passing the order dated 28.03.2008.
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11. Apart from the above, the learned counsel also drawn my attention to Rule 13, with regard to procedure ought to have been followed by the competent authority before disposing of such application, which reads thus:
"13. PROCEDURE
(a) The proforma as in Annexure may be used by Ministries/Departments/Offices for ascertaining necessary information and processing the cases of compassionate appointment.
(b) The Welfare Officer in each Ministry/ Department/Office should meet the members of the family of the Government servant in question immediately after his death to advise and assist them in getting appointment on compassionate grounds. The applicant should be called in person at the very first stage and advised in person about the requirements and formalities to be completed by him.
(c) An application for appointment on compassionate grounds should be considered : 12 : in the light of the instructions issued from time to time by the Department of Personnel and Training (Establishment Division) on the subject by a committee of officers consisting of three officers - one Chairman and two Members - of the rank of Deputy Secretary / Director in the Ministry / Department and officers of equivalent rank in the case of attached and subordinate offices. The Welfare Officer may also be made one of the Members /Chairman of the committee depending upon his rank. The committee may meet during the second week of every month to consider cases received during the previous month. The applicant may also be granted personal hearing by the committee, if necessary, for better appreciation of the facts of the case.
(d) Recommendation of the committee should be placed before the competent authority for a decision. If the competent authority disagrees with the committee's recommendation, the case may be referred to the next higher authority for a decision.": 13 :
On careful perusal of the above said procedure, there is no material available, whether such proceedings have been availed by plain reading of the impugned order. It also does not show that, the said procedure has been meticulously followed by means of any other communications given to the petitioner. Therefore, in my opinion, for all the above said reasons, the order is very bald and it appears, no other materials have been considered, whether the said case falls under specific category to consider the same apart from delay in making the application. In my opinion, the above facts and circumstances are sufficient to quash the impugned order and remit the matter to the respondent for reconsideration in accordance with law.
12. Before concluding this judgment. It is necessary to note here, the grounds raised by the respondent counsel. He very specifically submits before this Court that, the petitioner does not fall under category of any armed officers as per Section 2 of the : 14 : Army Act, 1950 and he further contends that, the petitioner being a civilian, he has to approach the Central Administrative Tribunal to challenge the impugned order at Annexure-Q. But, the learned counsel has not placed any sufficient material to show that the petitioner is a civilian appointed by the Central Government, so as to specifically categorize him as a Central Government employee. Even on reading of the Army Act, it does not exclude the persons appointed by the Army itself and there is no explanation or exception to the said provision i.e., Section 2 of Army Act to exclude the other officer, who are working under the respondents. Moreover, the applications filed by the petitioner has been entertained by the respondent themselves. If the employer is a Central Government employee, then they would have simply transferred the application to the Central Government for consideration, if the petitioner is categorized as a : 15 : civilian and the Army officer has no jurisdiction to entertain such application.
13. Further added to that, the appointment was given by the Army, salaries seems to have been disbursed by the respondents, pensionary benefits have been settled by the respondents and compassionate application was also entertained by the respondents. Therefore under the above said circumstances, the writ petition filed before this Court, in my opinion very well maintainable. Apart from that, when there is any ambiguity as to where, the party should go, under Article 226 and 227, this Court can entertain writ petitions particularly when there are allegations of the violation of principles of natural justice. Further added to that, considering the long standing dispute between parties since 2007, already more than 10 years have been lapsed, the Court should see that party would get relief as early as possible. Further added to the above, in the absence of any other procedural law for the time : 16 : being in force that petitioner falls under the category of civilian, in my opinion, in such doubtful circumstances, Court can exercise power under Section 226 in order to advance the justice suppressing mischief of such long drawn procedures.
14. Under the above circumstances, I am of the opinion, it is just and necessary to pass appropriate orders in this proceedings in order to see that, the matter is concluded at the hands of the respondents.
15. Reverting to the observation already made by me with regard to the impugned order passed dated 27.03.2008 as I have already come to the conclusion that, the procedures have not been followed as per Rule 13 and as well as no reasons have been assigned with regard to existences of any special circumstances, whether on any other ground, the petitioner is entitled for compassionate appointment. Therefore, on these grounds, in my opinion, the matter requires to be remitted to the respondent No.2 for reconsideration of : 17 : the application filed by the petitioner. Hence, with these observation, I pass the following:
ORDER.
The petition is partly allowed. Consequently, the order dated 27.03.2008 in No.B/05183/Competent authority /MLI/INF-6(PERS) as per Annexure-Q is hereby quashed. The matter stands remitted to respondent No.2 for reconsideration of the compassionate application filed by the petitioner in the light of the above said observations made in the body of the order. The said exercise has to be done within four months from the date of receipt of a copy of this order.
SD/-
JUDGE MNS/