IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 7713 of 2005(R) ------------------------- PETITIONER(S): --------------- SONY S. S/O.LATE N.SOMAN, EX.GS.166356 MT/DVR, R/A. SONY BHAWAN, PUTHIAVILA, PATTOLI MARKET P.O. ALAPPUZHA DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN SRI.M.S.NISHAD RESPONDENT(S): --------------- 1. THE UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF ROADS AND HIGHWAYS BRDB,B,WING, 4TH FLOORT, KASHMIR HOUSE, DHQ P.O. NEW DELHI 110 011. 2. THE DIRECTOR GENERAL BOARDER ROADS SEEMA SADAK BHAWAN, RING ROAD, DELHI CANTT. NEW DELHI 110 010. 3. THE COMMANDANT, GREF CENTRE, DIGHI CAMP, PUNE 15. 4. THE OFFICER COMMANDING, 501 SS & TPT COY 9GREF) C/O.56, APO. ADV. SMT.MINI R.MENON, ADDL.CGSC FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 7713/2005 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE LETTER DTD.8.4.96 BEFORE R4. P2. COPY OF THE LETTER DTD.30.4.96 FROM R4 TO R1. P3. COPY OF THE LETTER DTD.26.6.96 OF THE PETITIONER'S MOTHER TO OCDA ALLAHABAD. P4. COPY OF THE LETTER DTD.18.9.93 TO R3. P5. COPY OF THE LETTER DTD.12.10.03 FROM R3. P6. COPY OF THE LETTER DTD.8TH JULY, 2002 FROM R2 TO THE PETITIONER. P7. COPY OF THE JUDGMENT IN W.P.(C).No. 743/2004 OF THIS COURT. P8. COPY OF THE AFFIDAVIT BY R3 IN W.P.(C).No. 743/2004. P9. COPY OF THE ORDER DTD.15.2.05 OF R3. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 7713 of 2005 ================== Dated this the 19th day of August, 2011 J U D G M E N T The petitioner is the son of a driver of the 2nd respondent who died while in service on 9.7.1996. Since at the time of death of his father the petitioner was a minor, his mother was assured that the petitioner would be given compassionate employment when he attains the minimum age for employment. After the petitioner because major, he applied for compassionate employment. That was rejected on the ground of time limit prescribed in Ext.P6 new guidelines for compassionate employment issued on 8.7.2002. The petitioner approached this Court by filing W.P.(C). No.743/2004, in which, this Court passed Ext.P7 judgment, which reads thus: 'Petitioner is the son of late S.Soman who had been employed under the respondents as Driver. On 9.7.1996 the petitioner's father died in harness. The mother of the petitioner applied to the respondents for compassionate appointment to the petitioner by submitting Ext.P1 application dated 8.4.1996. As per Ext.P2 respondent No.4 informed the petitioner's mother that her elder son would get the appointment whenever he would attain the age. Such a communication was given having regard to the fact that the petitioner herein who is the elder son was a minor on the date of Ext.P1 application. Subsequently when the petitioner attained majority petitioner's mother applied to the respondents by submitting Ext.P4 application dated 18.9.2003, Second respondent informed the petitioner's mother as per Ext.P5 that since 7 years had lapsed from the date of death of Shri.Soman no compassionate appointment could be offered to the petitioner. This writ petition is filed mainly prying for a writ of certiorari to quash Ext.P5 and for a writ of mandamus directing the respondents to consider the claim of the petitioner for compassionate appointment in a Group C or Group D post under them. Since one of the reasons stated for rejection of the application for compassionate appointment was that there was a change of policy regarding the time within which applications for compassionate appointment had to be made as could be seen from Ext.P6 petitioner made a prayer to strike down the offending clause, if any, restricting the right to candidates who apply within one year from the date of w.p.c.7713/05 2 death of the employee. According to the petitioner, Ext.P6 is opposed to O.M. dated 5.5.2003 issued by the respondents themselves. The respondents filed a counter affidavit taking up the stand that compassionate appointment cannot be granted after a lapse of reasonable period and particularly in the light of the change of policy prescribing a period of one year from the date of death of the breadwinner of the family. When this writ petition has come up for consideration before me, learned counsel for the petitioner brought to my notice the judgment in O.P.No. 11730 of 2003 by which in almost similar circumstance a direction was issued to the respondents to re-examine the case of the petitioner therein and to take a decision on merits without being influenced by the time limit prescribed as per the change of policy. The petitioner in O.P.No. 11730 of 2003 is the widow of an army personnel who had passed away in harness while serving the GREF. Learned Judge who allowed O.P.No. 11730 of 2003 referred to another judgment passed by the same learned Judge in O.P.No. 33380 of 2002 wherein it was observed as follows: “Question is whether there is any laches on the part of the petitioner for moving the appropriate authorities in the matter of benefits that are normally admissible to members of the family of a deceased employee. On examination, it is found that there was no default or laches. This alone could have stood in the way of claims being considered.” In this case also it cannot be said that the petitioner was guilty of laches. An application was submitted by his mother within the time limit. But it so happened that the petitioner was a minor and therefore the respondents could not consider the claim of the petitioner for compassionate employment at that time. Petitioner's mother was informed that her elder son can make an application on his attaining majority. Accordingly, an application was submitted when the petitioner attained majority. In the above circumstances I do not find any justification for rejecting the application of the petitioner solely on the ground of delay in submitting the application. I therefore set aside Ext.P5. There shall be a direction to the respondents to re-examine the case of the petitioner expeditiously and promptly and communicate the decision to the petitioner within a period of three months from the date of receipt of a copy of this judgment. This shall be done without being influenced by the time limit prescribed as per Ext.P6.' Pursuant to the same, the Commandant, GREF, passed Ext.P9 order rejecting the claim of the petitioner on the ground that his application for compassionate employment cannot be considered due to non- w.p.c.7713/05 3 availability of vacancies and as being a belated request. The petitioner is challenging Ext.P9 order seeking the following reliefs: “I. Issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to consider the claim of the petitioners for compassionate appointment of the second petitioner under them as expeditiously as possible by providing employment for the petitioner anywhere in the territory of India in any Group 'C' or 'D' post. II. Issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to Exhibit P9 and quash the same as arbitrary illegal and unconstitutional. IV(sic) Declare that the petitioner is entitled to be considered for appointment under the Compassionate Appointment Scheme.” 2. A counter affidavit has been filed by the respondents reiterating the contentions raised in Ext.P9 order. 3. I have considered the rival contentions in detail. 4. The respondents cannot now hold out the same reason of delay for rejecting the claim of the petitioner insofar as in Ext.P7 judgment, this Court has specifically rejected the rejection of the claim of the petitioner on the ground of delay and directed reconsideration of the claim of the petitioner without being influenced by the time limit prescribed for claiming such appointment. As such, the reiteration of the reason of delay in Ext.P9 is patently unwarranted and may amount to contempt of court. As far as the contention regarding want of vacancies is concerned, in view of Ext.P2 earlier communication issued to the petitioner's mother as per the law available as on the date of death of the petitioner's father, I do not think that the respondents can take that contention also to deny compassionate employment to the w.p.c.7713/05 4 petitioner. Ext.P2 reads thus: “Reference your application dated 08 Apr 96 addressed to Commander 16 BRTF with a copy to HQ DGBR, this unit and amongst others. In this connection it is to inform you that the connected pension papers and other outstanding claims have been submitted to concerned authority for their immediate action vide this unit letter No.EX-G-166356H/Soman/55/E5 dated 08 Apr 96. On receipt of payment authority from CDA (Pension) Allahabad (UP)/PAD, GREF Care CDA (SC) Pune, 01, the payment will be made through bank draft immediately. As regards photograph of your late husband at the time of cremation, OC 54 RCC is being approached to forward the same direct to your address as the same are held with them. It is confirmed that your elder son will get the appointment whenever he attains the age.” After having assured the petitioner's mother that her elder son will get employment whenever he attains age, I do not think that the respondents can, at this point of time, deny the claim of the petitioner. Accordingly, the writ petition is allowed. It is declared that the petitioner is entitled to compassionate employment on account of the death while in service of his father in the service of the 2nd respondent. The petitioner shall be given appointment in the next arising vacancy. If no vacancy is arising within six months, within one month thereafter, the petitioner shall be appointed in a supernumerary vacancy and shall be regularised in a regular post as and when the next vacancy arises. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.7713/05 5