IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 4271 of 2007(H) -------------------------------------- PETITIONER(S): ------------------------ RETHI K.V., W/O. LATE CONSTABLE A.V.JANARDHANAN, MAMBALAM, KANAM, PAYYANNUR P.O., KANNUR DISTRICT, PIN-670 307. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SMT.SANJANA R.NAIR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY ITS PRL. SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (SAINIK WELFARE) DEPARTMENT, TRIVANDRUM. 2. GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, REPRESENTED BY THE DIRECTOR GENERAL, BOARD SECURITY FORCE HEADQUARTERS, C G O COMPLEX, BLOCK-10, NEW DELHI-110 003. 3. THE COMMISSIONER, HEAD QUARTER 88 BATTALION, BORDER SECURITY FORCE, KALYANI, NADIA, WEST BENGAL. 4. THE COMMANDING OFFICER, 22 RR (PUNJAB), PIN-934522, C/O. 56 APO. 5. THE ZILLA SAINIK WELFARE OFFICER, ZILLA SAINIK WELFARE OFFICE, CIVIL STATION, KANNUR-2. ADV. SRI.SAIGI JACOB PALATTY, CGC FOR R2 BY GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.4271/2007 H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER ISSUED BY THE DIRECTOR GENERAL, BORDER SECURITY FORCE HEADQUARTERS AS WELL AS THE REPORT OF THE FIRING DTD. 15/08/2000. EXT.P2: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 3RD RESPONDENT DTD. 22/12/2000. EXT.P3: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 1ST RESPONDENT DTD. 21/08/2001. EXT.P4: COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE PETITIONER, DTD. 24/01/2002. EXT.P5: COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE PETITIONER DTD. 7/05/2002. EXT.P6: COPY OF THE LETTER SENT BY THE PETITIONER TO THE 1ST RESPONDENT DTD. 11/06/2002. EXT.P7: COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT TO THE PETITIONER, DTD. 17/06/2002. EXT.P8: COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT TO THE PETITIONER, DTD. 17/06/2002. EXT.P9: COPY OF THE COMMUNICATION SENT BY 5TH RESPONDENT TO THE PETITIONER, DTD. 10/10/2002. EXT.P10: COPY OF THE LETTER SENT BY THE 3RD RESPONDENT TO THE PETITIONER DTD. 3/01/2003. EXT.P11: COPY OF THE LETTER ALONG WITH THE ATTRIBUTABILITY CERTIFICATE SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT, DTD. 18/08/2003. EXT.P12: COPY OF THE LETTER SENT BY THE 5TH RESPONDENT ZILLA SAINIK WELFARE OFFICE TO THE 3RD RESPONDENT DTD. 5/12/2003. EXT.P13: COPY OF THE COMMUNICATION SENT BY THE 5TH RESPONDENT, ZILLA SAINIK WELFARE OFFICER TO THE PETITIONER DTD.16/09/2004. Kss ..2/- ..2.... WPC.NO.4271/2007 H EXT.P14: COPY OF THE LETTER SENT BY THE 5TH RESPONDENT DIRECTORATE SAINIK WELFARE OFFICE TO THE PETITIONER DTD. 17/02/2006. EXT.P15: COPY OF THE LETTER SENT BY THE 4TH RESPONDENT TO THE PETITIONER DTD. 8/08/2006. EXT.P16: COPY OF THE COMMUNICATION SENT BY THE 1ST RESPONDENT TO THE PETITIONER REJECTING THE PETITIONER'S REQUEST FOR EMPLOYMENT ASSISTANCE DTD. 12/10/2006. EXT.P17: COPY OF THE LETTER SENT BY THE PETITIONER TO THE 3RD RESPONDENT DTD. 27/10/2006. EXT.P18: COPY OF THE GOVERNMENT ORDER NO.GO.(P) NO.110/02/GAD, DTD. 29/04/2002. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ===================== W.P(C).No.4271 of 2007 ===================== Dated this the 4th day of December, 2008. JUDGMENT The petitioner's husband late A.V.Janardhanan was a Constable in the Boarder Security Force, hereinafter referred to as the “BSF” for short. He was attached to the 88th Battalion of the BSF stationed at Baramulla in Jammu & Kashmir. On 10.8.2000, while on duty he was involved in an exchange of fire with militants. He was injured and succumbed to his injuries on 10.8.2000. The fact that the petitioner's husband met with his death at the hands of militants at Baramulla is not in dispute. Ext.P18 Government order dated 29.4.2002 contemplates employment assistance to dependants of defence personnel including BSF personnel attached to military duty who are killed or disabled or missing in action. Claiming appointment under the scheme set out in Ext.P18, the petitioner applied for compassionate appointment. The petitioner's application was rejected by Ext.P16 letter dated 12.10.2006 on the ground that the 88th Battalion of the BSF was not under the operational control of the Military and therefore the certificate issued by the Military authorities that the petitioner's husband was on military duty, cannot be accepted as genuine. Ext.P16 is under challenge in this Writ Petition. 2. I have heard Sri.K.V.Sohan, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader WP(C) 4271/07 -: 2 :- appearing for the first respondent. The question that arises for consideration is whether the rejection of the petitioner's application for employment assistance under Ext.P18 scheme is proper or not. It is not in dispute that the petitioner's husband died while on active duty on 10.8.2000 in an exchange of fire with militants at Baramulla in Jammu & Kashmir. Ext.P1 report of firing incident proves that fact beyond doubt. The Government of India had along with Ext.P11 letter dated 18.8.2003 forwarded to the Additional Secretary to Government, Home department, Government of Kerala, an Attributability Certificate dated 27.7.2003 issued by the Commanding Officer, 22 Rashtriya Rifles (Punjab) to the effect that late A.V. Janardhanan, Constable of the 88th Battalion of the BSF was killed in terrorist action at Baramulla in Jammu & Kashmir and that his death is attributable to service. In Ext.P15 letter dated 8.8.2006 also, it is certified that the petitioner's husband was on military duty on 10.8.2000, since it was a joint operation where troops from both Army and the BSF had participated. 3. From the materials on record, it is evident that the petitioner's husband was killed in terrorist action and that his death is attributable to his service as a Jawan in the BSF. It is also evident from Ext.P15 that on 10.8.2000, the petitioner's husband was on military duty and that it was a joint operation where troops from both the Army and the BSF had participated. The first respondent has discarded Ext.P11 on the ground that it runs counter to the statement in Ext.P8 that the 88th Battalion was WP(C) 4271/07 -: 3 :- not under the operational control of the Military. The only ground on which the petitioner's request was rejected is that Ext.P11 cannot be relied on in view of the statement in Ext.P8. In my opinion, the stand taken by the first respondent in Ext.P16 is not tenable. All that is stated in Ext.P8 is that the 88th Battalion of the BSF was not deployed under the operational control of the Military. On the other hand, what is stated in Ext.P15 is that the petitioner's husband was on military duty in a joint operation where troops from both the Army and the BSF had participated. In the case of BSF personnel the requirement of Ext.P18 is that they should also produce a certificate from the Military authority confirming that they were on military duty at the time of their death. Emphasis is on the words “military duty” and not on operational control. It is evident from Ext.P15 that the petitioner's husband died while on military duty. The fact that he was on military duty cannot therefore be disputed. Whether the Indian Army had operational control over the 88th Battalion of the BSF on 10.8.2000, was therefore wholly irrelevant in deciding the question whether the petitioner's husband died while on military duty. 4. For the reasons stated above, I hold that the request made by the petitioner for compassionate appointment under Ext.P18 order was not properly considered by the first respondent. In the result, Ext.P6 is quashed and the respondents are directed to reconsider the petitioner's application in the light of Exts.P11 and P15 and taking note of the fact WP(C) 4271/07 -: 4 :- that the only requirement of Ext.P18 is that personnel of the BSF should have been on military duty at the time of their death. Fresh orders in the matter shall be passed within two months from the date of receipt of a certified copy of this judgment. The Principal Secretary to Government, General Administration Department shall while passing revised orders, bear in mind the fact that the petitioner's husband on active duty met with death while protecting the lives of other Indian citizens. P.N.Ravindran, Judge. ess 13/12