IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 RP.No. 70 of 2005(I) ---------------------------- AGAINST THE JUDGEMENT IN OP.23819/2000 DATED 29/07/2004 .................... REVIEW PETITIONERS/ RESPONDENTS IN O.P: ------------------------------------------------------------------- 1. THE UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE COMMANDANT `D' COY-1, ELECTRICAL AND MECHANICAL ENGINEERS SCHOOL, BARODA. 3. THE SQUADRON COMMANDER, REPAIR AND RECOVERY SQUADRON, NATIONAL SECURITY GAURD, MANESAR DISTRICT, GURGAON, HARYANA. 4. DEPUTY DIRECTOR (E.M.E. PERSONAL), DIRECTORATE GENERAL OF EME, ALURY HEAD QUARTERS, NEW DELHI. 5. THE ASSISTANT RECORD OFFICER, VIDYUT AUR YANTHRIK ENGINEER, ABHILEKH KARYALAYA, EME RECORDS, SECUNDRABAD-500 022. BY ADV. SRI.K.R.RAJKUMAR, ADDL.CGSC. RESPONDENT/ PETITIONER IN THE O.P: ---------------------------------------------------------- MRS.RADHAMANI C.K., W/O. LATE UNNIKRISHNAN NAIR, VANCHISSERIL HOUSE, VADAYAR NORTH, THALAYOLAPARAMBU (P.O), KOTTAYAM DISTRICT. BY ADVS. SRI.K.RAMAKUMAR (SR.), SRI.T.K.AJITHKUMAR. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 22/01/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. T.R.RAMACHANDRAN NAIR,J. ------------------------- R.P. No.70 of 2005 in O.P No.2381 of 2000 -------------------------- Dated this the 22nd January,2009 O R D E R Heard learned standing counsel appearing for the review petitioners and learned counsel appearing for the respondent. 2. In the review petition, the grievance raised is that the claim for appointment under the scheme has been allowed by this Court without leaving the matter to be decided by the authority concerned. It is contended that the issue that arose for decision was only regarding one aspect; i.e whether the writ petitioner, whose husband was missing, was entitled to prefer the application. 3. Exhibit-P15 is the order that was challenged by the petitioner in the original petition before this Court. In Exhibit-P15, fourth respondent considered the petitioner's case and it was rejected on the ground that her husband Sri.Unnikrishnan Nair was missing and the dependent of a person who was missing is not covered under the scheme R.P. No.70 of 2005 in O.P No.2381 of 2000 2 of employment assistance on compassionate grounds. In that view of the matter, the application was dismissed. 4. This Court set aside the same after considering the detailed scheme itself. It was found that dependent of a person missing while in service is covered by the scheme. In the operative portion of the judgment, this Court held that respondents will have to consider the matter and to “give” appointment to the petitioner on compassionate grounds. It is therefore contended that since there is a positive direction to give appointment, the authority will not be able to consider whether the petitioner is eligible for appointment after considering the other factors relevant under the scheme. 5. Learned counsel for the respondent submitted that review petition itself is not maintainable as it is filed under Order 47 Rule 1 of the Code of Civil Procedure. Reliance was placed on a decision of this Court reported in Secretary, Ministry of Health and Family Welfare Department & Others Vs. Aswathy Elsa Mathew [2008(2) KHC 414]. It is also pointed out that by referring to the various documents produced in the writ petition that the applicant was entitled R.P. No.70 of 2005 in O.P No.2381 of 2000 3 for appointment under the scheme. 6. That this Court has power to review the judgment under Article 226 of the Constitution of India cannot be disputed. The said principle has been reiterated in the decision relied upon by the respondent. Even if there is misquoting of the provision under which it is filed as one under Order 47 Rule 1 of the Code of Civil Procedure that will not result in dismissal of the review petition. 7. There is no dispute that as to the merits of the claim, i.e. entitlement of the petitioner after considering various factors like financial position of the family, her qualification, age etc were not adjudicated at the point of time when Exhibit—P15 order was passed. It is true that as per Exhibit-P11 the 3rd respondent in the writ petition recommended it. But in Exhibit-P15 such factors were not discussed as the rejection was only for one reason. If that be so, the direction issued by this Court to give appointment will dis-entitle the authority to consider such relevant factors. Learned counsel for the respondent submitted that the respondent is living in utter poverty and review petitioners R.P. No.70 of 2005 in O.P No.2381 of 2000 4 are prolonging the matter and therefore the said aspect should be considered by this court. It is also submitted that in the counter affidavit, her entitlement has not been specifically disputed. 8. The issue considered by the judgment is only about the sufficiency of the reasons stated in Exhibit-P15. Therefore the above argument raised by the learned counsel for the respondent cannot be accepted. The finding that the application filed by the respondent is maintainable is not disturbed. The operative portion of the judgment is modified by directing the competent among respondents in the writ petition to consider the application for appointment under the dying-in-harness scheme on merits after assessing the various factors relevant under the Scheme and pass appropriate orders within a period of three months from the date of receipt of a copy of this order. The review petition is disposed of as above. (T.R.RAMACHANDRAN NAIR, JUDGE) ma R.P. No.70 of 2005 in O.P No.2381 of 2000 5 R.P. No.70 of 2005 in O.P No.2381 of 2000 6