Kerala High Court
Administrative Tribunal vs State Of Kerala on 21 February, 2017
Author: V Shircy
Bench: P.R.Ramachandra Menon, V Shircy
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939
OP(KAT).No. 455 of 2017
AGAINST THE ORDER IN OA (EKM) 1910/2016 of KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER(S)/RESPONDENTS IN OA
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
SAINIK WELFARE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, KERALA-695001.
2 GENERAL ADMINISTRATION (SAINIK WELFARE) DEPARTMENT
REPRESENTED BY SECRETARY, THIRUVANANTHAPURAM-695014,
KERALA.
3 DISTRICT SAINIK WELFARE OFFICER
BALAN K.NAIR ROAD, KOZHIKODE-673006, KERALA.
BY ADV.GOVERNMENT PLEADER SRI P.N. SANTHOSH
RESPONDENT/APPLICANT IN O.A.:
SINDHU C.P.
PRASANTHI HOUSE, PERAMBRA P.O.,
KOZHIKODE, KERALA-673525.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 21.11.2017,
THE COURT ON 16.1.2018 DELIVERED THE FOLLOWING:
OP(KAT).No. 455 of 2017 (Z)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 PHOTOCOPY OF THE O.A.EKM NO.1910/16 ALONG WITH
ANNEXURES.
EXHIBIT P2 PHOTOCOPY OF THE REPLY STATEMENT OF THE 3RD
RESPONDENT IN O.A. ALONG WITH ANNEXURES.
EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 21-02-2017 IN
OA(EKM)NO.1910/2016.
ks.
TRUE COPY
P.S.TO JUDGE
C.R.
P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.
==============================
O.P(KAT)No.455 of 2017
==============================
Dated this the 16th day of January, 2018
JUDGMENT
Shircy V, J.
A young widow of a Military personnel, Sri.Shijeesh V.K., who died while serving the Indian Army as a Havildar, has approached the Department/Government under compassionate employment scheme in State service as the dependent of a defence personnel, but unfortunately her request was rejected holding that his death was while serving in a peace area. Feeling aggrieved by the rejection of her claim, she approached the Tribunal seeking the following reliefs:
" i) To set aside Annexure A7 as unjust, illegal and arbitrary;
ii) To declare that the applicant is eligible to get compassionate employment under Annexure A4 G.O and Annexure A8;
iii) To direct the 1st respondent and 3rd respondent to pass orders granting the benefit of compassionate appointment on the basis of Annexure A4 G.O and Annexure A8 and to appoint the applicant in the post as per her eligibility;
iv) To grant such other reliefs as this Hon'ble Tribunal may OPKAT 455/2017 2 deem fit and proper in the circumstances of the case.
And
v) To allow the application with costs."
2. The Tribunal by Ext.P3 order dated 21.02.2017 set aside the order of rejection of her application for employment assistance and directed the Government to reconsider her application and to provide employment assistance in accordance with Annexure-A4 Government Order dated 29.04.2002. The said verdict is under challenge before this Court.
3. We have considered the rival contentions and also perused the impugned order and the materials on record.
4. Admittedly Sri. Shijeesh V.K. while serving in the Indian Army as Havildar (Army No.15315527X kin the 261 Bomb Disposal Coy Regiment) died on 30.07.2011 due to electrocution. Annexure A1 particulars of the deceased would show that his death was on 30.07.2011 and he left behind wife and two minor children. The cause of death as per Annexure A1 was electrocution and was attributable to OPKAT 455/2017 3 Military service. The respondent, his wife, has submitted an application requesting to extend the benefits of compassionate employment as the dependent of the defence personnel. Annexure A5 is the copy of the application submitted by her for Employment Assistance on compassionate appointment. It is not in dispute that the death of Shijeesh was while he was discharging his official duty. But the Government found her ineligible as per Annexure R3(a), the copy of the revised G.O. Dated 29th April 2002 issued by the State of Kerala. The G.O is of the General Administration Department which reads as follows:-
(relevant portion of the G.O alone is extracted) 'Public Service Employment Assistance to the dependents of Defence Personnel and GREF/BSF Personnel attached to Military duty killed missing disabled in action or died/disabled due to reasons attributable to Military service in peace time conditions circumstances which are identical to activities during operational engagements' OPKAT 455/2017 4 "In supersession of the orders issued in the G.O. Read above Government are pleased to issue the following orders to provide employment assistance in the State Service to the dependents of the Defence Personnel and GREF/BSF personnel attached to military duty killed disabled missing in action or died disabled missing due to reasons attributable to military service in peace time.
2. Eligibility:
(i) The concession under the scheme shall be applicable in one dependent of the defence personnel and GREF/BSF personnel attached to military duty killed disabled/missing in operational areas field areas due to high attitude or adverse climate conditions or due to explosion of mines, booby traps, vehicle accidents etc. within operational area field area peace time conditions circumstances of which are identical activities during operational engagements.
(ii) In the case of the dependant of the disabled defence personnel and GREF/BSF personnel attached to military duty, the personnel who had sustained injury disability over 50% and declared not fit for civil employment is only eligible for the benefit under the scheme.
iii) The depedants are eligible for employment assistance only if the deceased/missing/disabled personnel belongs to Kerala State by birth and domicile.
3. Dependants:
The following relatives of the deceased/disabled missing Defence personnel and GREF/BSF personnel will be considered as dependant under the scheme who are eligible for the employment assistance in the order of priority as indicated below:
(i ) Wife/Husband
(ii) Son
(iii) Daughter
(iv) Unmarried Brother
(v) Unmarried Sister"
5. The contention raised by the Government for rejecting the application submitted by the respondent is that OPKAT 455/2017 5 the death of her husband was due to electrocution while working in a peace area and it was not due to high attitude or adverse climatic conditions or due to explosion of mines, booby traps or accidents etc and therefore, the scheme applicable to the dependents of Military persons for employment assistance cannot be extended to this respondent. Annexure A7/R3(b) is the order rejecting her application on the ground that the death of her husband was due to electrocution in peace area.
6. Annexure A3(a) is the Attributability certificate dated 17th October 2011 issued by the Major General concerned on the death of Sri.Sheesh. It is certified as follows:
"The death of No.15315527X Rank Hav/Elect Name:
Shijeesh VK Arms/Services/Records Office: Records MEG Present Unit: 261 Bomb Disposal Company on date: 30 July 2011 due to electric shock while routine check of electrical lines in unit, is declared as attributable to Military Service in terms of Rule 12 and 13 of the Entitlements Rules to Casualty Pensionary Awards to Armed Forces Personnel, 1982. The declaration is, however, subject to approval of the Competent Authority, as mentioned in Govt.of India, Ministry of Defence letter No. 1(2)/2002/D (Pen- C) dated 01 Sept.2005, as amended."OPKAT 455/2017 6
7. Annexure A3(a)(1) is the direction of the General Officer Commanding Bengal Area on the Court of Inquiry Proceedings to investigate into the circumstances under which No.15315527X HAV/ELECT SHIJEESH VK of 261 BD COY, died on 30 July 2011, which is in the following terms:
"1. I agree with the Opinion of the court and Recommendations of Stn.Cdr. Kanchrapara.
2. The death of No.15315527X Hav/elect Shijeesh vk of 261 BD Coy, is attributable to military service."
8. Annexure A6 is the Certificate issued by Major, Officiating Officer Commanding, 261 Bomb Disposal Company dated 05.11.2011, which reads as follows:
"TO WHOM SO EVER IT MAY CONCERN
1. It is to state that Army No. 15315527X Late Havildar SHIJEESH VK was a soldier of Indian Army and was serving with 261 Bomb Disposal Company while he laid down his life on active duty in the service of nation. Late Havildar Shijeesh VK was a diligent soldier, who had set examples of fidelity, courage and good conduct.
2. He has left behind his wife Smt. Sindhu CP(Next of kin) and two children. Smt. Sindhu CP is the only care taker of their children. She is an extremely intelligent and hard working woman, who is capable of handling all kinds of tasks.
3. In view of the above, Smt. Sindhu CP wife of late Hav Shijeesh VK is strongly recommended for serving in various fields/agencies including State and Central Govt. Services."
9. As certified by Annexure A3 the death of the OPKAT 455/2017 7 husband of the respondent was due to electric shock while he was engaged with routine check of electric lines and units and he was attached to bomb disposal company. The death is attributable to military service as certified by the authority. Though the Officiating Officer of his company strongly recommended to provide employment to his dependent the same was not acceded to by the Government. Presumably to establish her legal right she approached the Tribunal and obtained Ext.P3 order.
10. In this backdrop, this Court is called upon to decide whether the decision of the Tribunal is correct or not or the view taken by the Government is justified in law.
11. It is true that his death had occurred in a peace area and not in a war field, but it was while he was engaged with his official duty. The life of a soldier which is dedicated to the nation is always under threat irrespective of the fact whether he is serving in a peace area or in a war field. Scheme of employment on compassionate grounds to the OPKAT 455/2017 8 dependents is implemented to give relief to the destitute family members as a solace on the death of the serving personnel and definitely it is to provide financial assistance to the family members who are thrown to poverty and miseries unexpectedly. In such a scenario we do not find any justification in discriminating the dependents of military personnel. Whether the death was in a war field or in a peace area will not make any difference as 'death is death' so far as the dependents are concerned.
12. Military personnel are performing laborious tasks for the nation, in crucial and sensitive areas. There is no doubt that his death occurred while he was engaged with his official duty. The financial hardship/sufferings, crisis etc. she is facing to pull on her life with her minor children pursuant to his death is pleaded elaborately in her letter addressed to the Government for considering her request for employment on compassionate ground.
13. The learned counsel for the respondent pointed OPKAT 455/2017 9 out that by Annexure A4 a similarly situated person by name Smt.Subiksha, sister of late Subineesh, a defence personnel, was given employment under the Scheme by the Government in relaxation of the condition stipulated in Annexure R3 (a) dated 29.4.2002. Therefore, the argument of the respondent is that she had been treated unfairly or discriminated by rejecting her claim. In view of the position stated above, it is clear that the scheme is formulated with an idea to extend a helping hand to the family of the different classes of defence personnel who lost life for the nation and the object of the scheme is to advance justice and not to frustrate it. Since the object and intention of this provision is to save and protect a destitute family due to the untimely death of their sole breadwinner, rejection of the claim of the dependent for the mere reason that the death of the military personnel was in a peace area is unfortunate and not at all justified; all the more for the reason that it occurred while he was engaged with his official duty. OPKAT 455/2017 10 Doubtless that the powers vested on the Government on compassionate appointment shall be exercised indiscriminately and the attempt/effort should be to honour it to support the bereaved family rather than to reject it on some ground or other. We therefore do not find any error in the order of the Tribunal directing the Government to reconsider the application of the respondent and to provide her with employment assistance in accordance with Annexure R3(a) G.O.P 110/02/GAD dated 29.04.2002.
14. The learned Counsel for the respondent has pointed out that in Writ Petition No.3671/2007 this Court has held that a hyper technical view is not feasible in considering the appointment on compassionate ground to the dependents in military service and directed to reconsider the application of the petitioners therein for compassionate appointments afresh.
15. As the main object and intention of the Scheme is to provide aid and protection to save the family of the OPKAT 455/2017 11 defence personnel from destitution and poverty on death or disablement or missing due to reasons attributable to military service, we strongly feel that the eligibility criteria drawn in extending the benefits flowing from the scheme and denying the benefits on the finding as ineligible just for the reason that the death or disability occurred while he was serving in peace area is certainly a discrimination without any justification and arbitrary and is liable for reconsideration, as there cannot be any pick and choose policy and only similar treatment is expected to be given to all. In the case at hand, we have no doubt to hold that the Government has not considered the hardship caused to the respondent due to the death of her husband and erred in declining the relief to her.
16. We therefore, find no difficulty in concurring with the findings, which in our view do not call for any interference by this Court. It is further directed to consider the request of the respondent and to take fresh decision to OPKAT 455/2017 12 provide suitable employment to her within one month of the receipt of a copy of this judgment.
17. In the circumstances, we think that it is just and proper to direct the Government to reconsider Annexure R3(a)G.O (P) No.110/02/GAD dated 29th April to effect appropriate modification to extend the benefits to the deserving members of the family of military personnel honouring them as persons who scarified their precious life to the nation. Registry shall forward a copy of the Judgment to the Government of Kerala for compliance .
O.P is disposed of accordingly.
Sd/-
P.R. RAMACHANDRA MENON JUDGE Sd/-
ks SHIRCY V.
JUDGE
true copy
OPKAT 455/2017 13
OPKAT 455/2017 14
ks