Gujarat High Court
Shaikh Abdulhamid Abdulkarim vs Senior Dcm on 14 March, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/3410/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3410 of 2016
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 3410 of 2016
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SHAIKH ABDULHAMID ABDULKARIM
Versus
SENIOR DCM
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Appearance:
MR ATIT D THAKORE(5290) for the Petitioner(s) No. 1
MS ARCHANA U AMIN(2462) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 14/03/2019
ORAL ORDER
[1] This petition under Article 226 of the Constitution of India is filed by the petitioner for directing the respondent authority to consider the application made by the petitioner to transfer the licence bearing Coolie buckle No.1838 (licence badge) in favour of the petitioner.
[2] It is the case of the petitioner that brother-in-law of the petitioner namely Taj Ismail (Jijaji) was working as a porter in railway station and was allotted licence badge No.1838 as a licence porter. As the petitioner did not have any child (male child), the petitioner was brought up as the son of the said Taj Ismail. As the brother-in-law of the petitioner was suffering from knee problem, the petitioner made an application in the year 2007 for transferring the licence badge to the petitioner and alongwith the application other necessary documents were also annexed.
Page 1 of 5 C/SCA/3410/2016 ORDER[3] Learned advocate Mr. Atit D. Thakore appearing for the petitioner drew attention of this Court to the policy of the respondent-railway authority regarding transferring licence badge and in absence of son, the porter can transfer licence badge to his near relative which includes the brother or brother's son or wife's brother. The petitioner herein being wife's brother was entitled to such transfer of the licence badge.
[3.1] Learned advocate submitted that under the annexure at Annexure-F dated 25.01.2013, the petitioner was intimated that the application for transfer is rejected. Learned advocate submitted that the petitioner thereafter filed Special Civil Application No.8819 of 2013 before this Court, which came to be disposed of by order dated 01.08.2013 to enable the petitioner to pursue his application and represent before the railway authority with regard to the doubts raised by the entry of the name of the petitioner in the ration card. It appears that pursuant thereto, the petitioner had made another application with necessary documents (Annexure-H), where he had submitted all the documents afresh. It is submitted that the said application has not been taken into consideration at all.
[4] Learned counsel Ms. Archana U. Amin for the railways submitted that the decision which was taken in case of the application filed by the brother-in-law in the year 2007 has been communicated and the discrete inquiry conducted by the railways has reveled that the documents supplied alogwith the application by brother-in-law for transfer of licence badge to the petitioner were doubtful. The ration card which was supplied alongwith the application contained the name of the petitioner, whereas, the original ration card did not contain the Page 2 of 5 C/SCA/3410/2016 ORDER name of the petitioner. It is on account of such discrepancy, the administration came to the conclusion that in case of application made in the year 2007, fabricated documents were produced. It is submitted that the buckle No.1838 was allotted to Taj Ismail (brother-in-law of the petitioner) is now in the custody of the railway administration after the death of the brother-in-law of the petitioner on 31.03.2008.
[5] The Court has taken into consideration the rival submissions of the parties. From the pleadings, it appears that the said Taj Mohammad Ismail had no biological child and had adopted girl child named Mantasa, whereas the petitioner was residing with the family since his age of 10 years as the sister of the petitioner was married to said Taj Mohammad Ismail. The pleadings would indicate that the petitioner has the responsibility of the family which now includes the sister (adoptive daughter of Taj Ismail) as the sister of the petitioner has also now expired.
[6] The Court has now taken into consideration the policy which is evident from the railway boards letter No.298/1/18/1 (Vol.IV) dated 6/9.01.1989, clause No.2 of the same reads as under:-
"....(2) Board vide their letter No.85/TGII/1010/Licenced Badge/Policy dated 09.12.1988 have now decided that the porter's licence may be transferred to his son or, if he has no son or his son is not alive, to his near relative in the event of his death or when, he becomes very old, infirm or very sick and is not above to carry out his duties properly. Near relatives will include brother, or brother's son or wife's brother...."
[7] Considering the policy, it is evident that the petitioner is eligible family member to receive licence badge after the Page 3 of 5 C/SCA/3410/2016 ORDER death of his brother-in-law (originally badge licence holder).
[8] The stand of the respondent in not considering the application on the ground that first application of the year 2007 filed by the originally badge licence holder was accompanied with doubtful documents. This Court is of the view that the earlier application was made by the original badge holder, who is no more. Moreover, the documents which were produced alongwith application of the originally badge holder (since deceased) were not the documents which would be the basis for taking the decision for transferring the badge licence in favour of the petitioner. In fact, under the policy, no documents were required in case where admittedly, the petitioner is the brother of the wife of the original badge holder.
[9] The application subsequent to the order dated 01.08.2013 passed by this Court in Special Civil Application No.8819 of 2013 has to be viewed independently and such application does not appear to be an application which is attached with the documents which are forged or fabricated and therefore, the case of the petitioner deserves to be considered independently.
[10] The Court has also taken into consideration that the badge licence is for the purpose of working as a porter at railway station, which is handled by the people who belongs to economically weaker section of the society. In the instant case, the railway authority is required to take a pragmatic view as it was the question of livelihood of the petitioner and his family as the petitioner is eligible for transfer of the licence badge from the original badge holder (brother-in-law of the petitioner) Page 4 of 5 C/SCA/3410/2016 ORDER and therefore, representation of the petitioner ought to have been considered favourably.
[11] In view of the aforesaid discussion, the representation dated 'Nil' at Annexure-H to the petition alongwith the documents), is ordered to be decided within a period of four weeks from the date of receipt of writ of this order. While considering the representation, the petitioner shall be given an opportunity of hearing.
[12] With the above, the present petition is allowed. Direct service is permitted.
[13] In view of the order passed in the main matter, Civil Application for fixing the date of early hearing does not survive. Hence, the Civil Application stands disposed of not survived.
(A.Y. KOGJE, J) SIDDHARTH Page 5 of 5