IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WP(C).No. 1172 of 2007(M) ------------------------- PETITIONER: --------------- USHA KUMARI M., W/O.LATE E.SURESH KUMAR, ERANHIKKODI HOUSE, PAYAMBRA P.O., KUKRUVATTOOR, KUNNAMANGALAM, KOZHIKODE. BY ADV. SRI.THOMAS ANTONY RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO THE GOVERNMENT, GENERAL ADMINISTRATION (SAINIK WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTORATE OF SAINIK WELFARE REPRESENTED BY ITS DIRECTOR, VIKAS BHAVAN, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.GEORGE JOSEPH VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 1172/07) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE CERTIFICATE BY THE COMMANDING OFFICER DATED 9.8.1999. EXT.P2: TRUE COPY OF THE ATTRIBUTABILITY CERTIFICATE ISSUED BY RECORD OFFICER OIC EME RECORDS DATED 21.9.2002. EXT.P3: TRUE COPY OF THE G.O.(P) NO.110/2002/GAD DATED 29.4.2002. EXT.P4: TRUE COPY OF THE LETTER FROM THE PRINCIPAL SECRETARY TO THE GOVERNMENT DATED 27.7.2006. P.N.Ravindran, J. =============== W.P.(C) No.1172 of 2007 ===================== Dated this the 14th day of January, 2009. JUDGMENT The petitioner is the wife of late E.Suresh Kumar, a Naik Subedar attached to the 22 Field Regiment of the Indian Army, that was deployed in the North Eastern Sector for the counter insurgency operations conducted as part of “Operation Vijay” during the Kargil War. While on duty he contacted Cerebral Malaria and was evacuated from the field and admitted to 162 Military Hospital, C/o. 99 APO from where he passed away on 14.6.1999. The Commanding Officer of the petitioner's husband thereafter issued Ext.P1 certificate dated 9.8.1999 certifying that the death of the petitioner's husband is attributable to military service as he had acquired the infection during military service. 2. The Government of Kerala had issued G.O.(P) No.315/96/GAD dated 12.11.1996 providing for employment assistance in State service to dependants of defence personnel who were killed/disabled/missing in action. Ext.P3 Government order dated 29.4.2002 was later issued in supersession of G.O.(P) No.315/96/GAD dated 12.11.1996 to provide employment assistantance in State service to dependants of defence personnel and GREF/BSF attached to military duty who are killed/ disabled/missing in action or died/disabled/missing due to reasons WP(C) 1172/07 -: 2 :- attributable to military service in peace time. Ext.P3 Government order inter alia states that in respect of defence personnel, the Officer-in- charge of Records/Headquarters of the concerned Defence Force is the authority competent to certify that the death of the defence personnel was due to reasons attributable to military service. 3. For seeking employment assistance under Ext.P3 Government order, the petitioner applied for and obtained Ext.P2 attributability certificate from the Officer-in-charge of Records. She thereafter submitted an application in the prescribed form along with the original of Ext.P2 to the Zilla Sainik Welfare Officer, Kozhikode. The pleadings and the materials on record disclose that the Zilla Sainik Welfare Officer did not forward the application to the Government which is the authority competent under Ext.P3 to take a decision in the matter. When no action was taken by the Zilla Sainik Welfare Officer on her application dated 27.5.2002, the petitioner moved the Government. The Government thereupon sent Ext.P4 letter dated 27.7.2006 stating that as the cause of death of the petitioner's husband was Cerebral Malaria, his case does not come under the purview of Ext.P3 Government order. The Government took the stand that the petitioner is therefore not eligible for employment assistance in State service. Ext.P4 is under challenge in this Writ Petition. 4. The petitioner contends that the stand taken by the Government in Ext.P4 is patently illegal and is not in tune with the stipulations in WP(C) 1172/07 -: 3 :- Ext.P3. The petitioner further contends that Ext.P3 is intended to provide employment assistance to dependants of defence personnel killed or disabled due to reasons attributable to military service and that when the competent authority certifies that the death of the defence personnel was due to reasons attributable to military service, the Government cannot sit in appeal over the decision of the competent authority and reject the application stating that the death is not attributable to military service. The respondents on the other hand contend that the first application submitted by the petitioner was disposed of by the Zilla Sainik Welfare Officer on 28.11.2002 and that on receipt of the petition submitted by the petitioner, the Government examined the matter and sent Ext.P4 reply stating that death due to Cerebral Malaria cannot be attributed to military service. The respondents contend that the cause of death of the petitioner's husband was due to natural causes and not due to reasons attributable to military service and therefore the petitioner cannot claim or be granted employment assistance under Ext.P3. 5. I have considered the submissions made at the Bar by Sri.Thomas Antony, the learned counsel appearing for the petitioner and Sri.George Joseph Vadakkel, the learned Government Pleader appearing for the respondents. Ext.P3 Government order contemplates employment assistance to dependants of defence personnel who die or are disabled or are missing in action or die or are disabled or are missing due to WP(C) 1172/07 -: 4 :- reasons attributable to military service in peace time. Paragraph 2(i) of Ext.P3 states that the concession under the scheme shall be applicable to one dependant of the defence personnel and GREF/BSF personnel attached to military duty, killed/disabled/missing in operational areas/field areas due to high altitude or adverse climatic conditions or due to explosion of mines, booby traps, vehicle accidents etc., within the operational area/field area/peace time conditions, circumstances of which are identical to activities during operational engagements. Paragraph 4 of Ext.P3 stipulates that the Officer-in-charge of Records/Headquarters of the concerned Defence Force will be competent to certify the attributability of the service of defence personnel. Paragraph 8 of Ext.P3 stipulates the procedure to be followed in the submission of applications and disposal of the same. 6. Going by Ext.P3, the authority competent to take a decision in the matter is the Government. Therefore, the stand taken by the respondents that the petitioner's application was disposed of by the Zilla Sainik Welfare Officer is not tenable. The Zilla Sainik Welfare Officer had no authority to dispose of the application. It was for the Government and the Government alone to decide whether the petitioner's application for employment assistance should be granted or not. Exts.P1 and P2 establish beyond doubt that the death of the petitioner's husband is attributable to military service. The original of Ext.P2 was submitted along with the application submitted by the petitioner. In my considered WP(C) 1172/07 -: 5 :- opinion, when the competent authority certifies that the death is attributable to military service, the Zilla Sainik Welfare Officer or the Director of Zilla Sainik Welfare Office or the Government cannot sit in appeal over the matter and decide that the death was not attributable to military service. Ext.P3 does not confer on the Government such a power to sit in appeal over the opinion of the certifying authority. In the instant case, Ext.P4 and the counter affidavit filed by the respondents disclose that the respondents have ignored the certificate issued by the competent authority and taken the stand that the death of the petitioner's husband was not due to reasons attributable to military service. On the terms of Ext.P3, the stand taken by the Government in Ext.P4 cannot be sustained. 7. In the result, the Writ Petition is allowed, Ext.P4 is quashed and the respondents are directed to reconsider the application submitted by the petitioner for employment assistance under Ext.P3 Government order. The Director of Zilla Sainik Welfare Office shall call for the concerned files from the Zilla Sainik Welfare Officer, Kozhikode and forward the same to the Government along with his recommendations. This shall be done within one month from the date on which the petitioner submits a certified copy of this judgment. The Government shall thereupon consider the matter having regard to the purpose and intend underlying Ext.P3 and take an appropriate decision in the matter within three months thereafter. The Government shall while re- WP(C) 1172/07 -: 6 :- considering the matter, go by the opinion expressed by the competent authority in Ext.P2 certificate. P.N.Ravindran, Judge. ess 15/1