IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 OP.No. 38809 of 2001(T) ------------------------------------- PETITIONER(S): ------------------------ VALSALA KUMARI, NADUVILATH PUTHEN VEEDU, KARAZHAMA WEST, CHERUKOLE P.O., MAVELIKKARA. BY ADV. MR.R.KRISHNA RAJ RESPONDENT(S): --------------------------- 1. COMMANDANT, 75 KAWACHIT REGIMENTS, 75 ARMOURED REGIMENT, C% 56 A.P.O. 2. OFFICER-IN-CHARGE OF RECORDS, ARMOURED CORPS RECORDS, P.B.NO.55, AHEMED NAGAR. 3. THE CHIEF OF ARMY STAFF, NEW DELHI. 4. SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, GOVERNMENT OF INDIA, NEW DELHI. 5. THE SECRETARY TO GOVERNMENT, MINISTRY OF RAILWAYS, GOVERNMENT OF INDIA, NEW DELHI. BY GOVERNMENT PLEADER BY ADV.MR.M.RAJENDRA KUMAR, ADDL.CGSC BY ADV.MR.P.A.VARGHESE MR.JOHN VARGHESE, ASSISTANT SG MR.THOMAS MATHEW NELLIMOOTTIL,SR.P.ARM MR.A.JAYASANKAR, ADDL.CGSC MR.P.PARAMESWARAN NAIR, ASG MR.ALEXANDER THOMAS SC FOR RAILWAYS R5 BY ADV.MR.N.B.SUNIL NATH,SC, RAILWAYS R5 BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/02/2009 ALONG WITH WPC NO. 12706 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.63609/2000 & I.A.NO.1417/2008 IN O.P.NO.38809/2001 T DISMISSED 13/2/2009 SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REQUEST OF THE PETITIONER DTD. 11/08/1999. EXT.P2: COPY OF THE OF THE APPLICATION OF THE PETITIONER DTD. 27/04/1999. EXT.P3: COPY OF THE LETTER OF THE RESPONDENT DTD. 4/03/1999. EXT.P4: COPY OF THE LETTER OF THE RESPONDENT DTD. 19/06/2000. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE LETTER DTD. 04/03/1999 ISSUED BY THE RECORDS OFFICER, OIC RECORDS ARMOURED CORPS RECORDS. EXT.R1(B): COPY OF THE LETTER DTD. 27/11/2000 ISSUED BY THE ARMY HEADQUARTERS TO THE ARMOURED CORPS RECORDS. EXT.R1(C): COPY OF THE ORDER DTD. 25/09/2001 IN O.A.NO.903/HR/2001 OF THE CAT, CHANDIGARH BENCH. EXT.R1(D): COPY OF THE O.M.NO.14014/23/99 ESTT.(D) DTD. 03/12/1999 ISSUED BY THE GOVERNMENT OF INDIA. EXT.R1(E): COPY OF DEATH CERTIFICATE DTD. 10/09/1998. EXT.R1(F): COPY OF LETTER DTD. 26/11/1998 ADDRESSED TO ZILLA SAINIK WELFARE ALAPPUZHA ALONG WITH SERVICE PARTICULAR'S OF THE PETITIONER'S HUSBAND. /TRUE COPY/ P.S.TO JUDGE Kss (C.R.) P.R. RAMACHANDRA MENON, J. ........................................................................ O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. ......................................................................... Dated this the 13th February, 2009 J U D G M E N T The petitioner in both these petitions are one and the same. Sustainability of Ext.P13 order passed by the first respondent rejecting the claim of the petitioner seeking the benefit of compassionate employment under Ext.P2 State scheme is the subject matter involved in W.P.(C)No. 12706 of 2004; whereas the Original Petition filed much earlier pertains to different reliefs; viz (i) compassionate appointment under respondent Nos. 1 to 3 ; (ii) disbursement of monetary benefits allegedly due in respect of the military service rendered by the deceased husband of the petitioner and (iii) in respect of the claim put forth against the Railways for damages when the deceased husband, while on duty was run over by the train when it was being shunted in the premises of the railway station. 2. With regard to the reliefs prayed for in the earlier case (O.P.38809 of 2001), a detailed counter affidavit has been filed by the respondents asserting that the request for compassionate O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 2 appointment preferred by the petitioner was duly considered, but no favourable orders could be passed as no vacancy had arisen as allocable to the petitioner on the basis of her turn and the quota earmarked for giving such employment assistance of compassionate appointment . It is pointed out by the learned Central Government counsel for the respondents in the said case, with reference to Ext. R1(b) produced along with the counter affidavit, that the application for compassionate appointment can be kept pending only for one year and if the turn has not arisen in the meanwhile, it cannot be considered any further. 3. The learned Central Government Counsel further pointed out that the question of compassionate appointment can be considered and the benefit can be extended only in accordance with the scheme and that there is absolutely no violation of any of the provisions in the scheme in respect of the quota earmarked or otherwise; particularly when no such challenge has been raised in O.P. No. 38809 of 2001. It is also brought to O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 3 the notice of this Court that the Apex Court vide the decision in Himachal Road Transport Corporation vs. Dinesh Kumar [(1996) 4 SCC 560] , has held that the benefit of compassionate appointment cannot be extended by directing the Government/Department to create supernumerary vacancies (Paragraph 10). The law has been reiterated by the Apex Court in the subsequent decision in Hindustan Aeronautics Ltd. vs. A. Radhika Thirumalai [1996) 6 SCC 394] as well. This being the position and since the reason for rejection of the application of the petitioner for compassionate appointment by the respondents in O.P.No. 38809 of 2001 has not been assailed, absolutely no relief can be extended to the petitioner in this regard. 4. With regard to the second prayer raised in the said Original Petition, a detailed statement has been filed by respondent Nos. 1 to 4 pursuant to the interim order passed by this court on 25.07.2007 wherein it has been stated in black and white terms showing the break-up figures of all the benefits O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 4 payable to the petitioner on the death of her husband. The amounts released to her under different heads include Ex-Gratia payment of Rs.5 lakhs, Army Group Insurance Fund Death Benefit of Rs, 3.75 lakhs and such other amounts, besides sanctioning and granting of family pension. It is asserted that no further amount is due from the respondents in this regard. Obviously no reply affidavit has been filed by the petitioner rebutting the statement made by the respondents. Hence the second prayer in the Original Petition does not desrve to be considered any further. 5. With regard to the third prayer, claiming damages from the Railways, it is pointed out by the learned counsel appearing for the Railways that the death of the husband of the petitioner actually occurred when he was hit by loose shunting boggies at Merta Road Railway Station in Rajasthan. It is stated that on 10. 09.1998, when the husband of the petitioner was recklessly crossing the railway track, a train hit him and he sustained multiple crush injuries on both legs which led to his death on the O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 5 same date. It is further stated that the said incident does not come within the meaning of “untoward incident” as contemplated under section 123(c) of the Railways Act, 1989 so as to make the petitioner eligible for compensation from the Railways. It is also submitted that the deceased was never a passenger at the relevant time and hence there is absolutely no duty or liability for the Railways to satisfy the claim put forth in this regard. Learned counsel further points out that the petitioner, if at all she is aggrieved, it is for her to approach the appropriate forum-the Railway Claims Tribunal constituted under the Railways Act, 1989 where the matter has to be adjudicated on the basis of the evidence to be adduced and that the petitioner cannot have any short cut dispensing with the jurisdiction entrusted with the Tribunal by invoking the discretionary jurisdiction of this court under Article 226 of the Constitution of India. 6. Obviously the third relief sought for by the petitioner in the Original Petition No. 38809 of 2001 is rather a hypothetical O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 6 one seeking for a direction to pay compensation to the extent it would have been payable “ had she approached the Railway Claims Tribunal”. As she has not filed any claim before the Tribunal, this court will not be justified in venturing into any such exploratory exercise. The remedy of the petitioner in this regard, if otherwise justifiable, lay elsewhere. 7. Coming to Writ Petition No. 12706 of 2004, the reliefs prayed for by the petitioner are mostly confined to the respondents 1 to 3, i.e., the State Government and authorities thereunder. It appears from the materials brought on record that the petitioner, having failed to obtain favourable reliefs in respect to the benefit of compassionate appointment under the respondents in O.P.No. 38809 of 2001 (Defence/Army), approached the State Government and authorities there under seeking for the benefit under Ext.P2 State scheme. The application preferred by the petitioner in this regard was originally turned down by the concerned respondent vide Ext. P9 dated 15.02.2000, which was subjected to challenge before this O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 7 Court by filing O.P.NO. 11143 of 2000, which culminated in Ext. P12 judgment dated 19.12.2003. This court found that the matter required fresh consideration by the respondents and accordingly the impugned orders, Exts. P9 and P11 were set aside and the concerned respondents were directed to reconsider the request of the petitioner and pass final orders within the specified time. Pursuant to the said verdict, the matter was considered afresh by the Government and the application was rejected vide Ext. P13 stating that the death of the husband of the petitioner did not occur “in an operation area” as contemplated in Ext.P2 Scheme, which in turn has been subjected to challenge in the present Writ Petition. 8. Separate counter affidavits have been filed from the part of the respondents 1 and 2. The action pursued by respondent Nos.4 and 5, as submitted in the other Original petition, has been explained in the counter affidavit filed by respondent Nos.4 and 5 filed in this case as well and it is pointed out that such action has not been subjected to challenge in W.P.(C) 12706 of 2004. O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 8 That apart, it has also been pointed out in paragraph No.4 of the counter affidavit that the death of the husband of the petitioner was not in an 'operation area' as envisaged in the Scheme. 9. Ext. P13 has been sought to be justified by the respondents 1 and 2 specifically referring to the relevant clauses in Ext. P2 scheme. The petitioner has filed reply affidavit wherein it has been stated that the concept of death in an 'operation area' need not be understood as death in operation in war in the operation area and that it should be given a wider meaning. The learned counsel for the petitioner referring to Maxwel on Interpretation points out that a beneficial construction shall be adopted in this case. 10. Obviously, the reliefs sought for in the Writ Petition are based on Ext. P2 scheme formulated and notified by the Government of Kerala. The eligibility thereunder is specified in Clause (3), which is extracted below; 3. The concession under this scheme shall be applicable to one dependent of the following categories of defence/GREF/BSF personnel: O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 9 (i) Killed/Missing/Disabled, in action (ii) Killed/disabled in operation areas due to high altitude or adverse climatic conditions or due to explosion of mines, bobytraps, vehicle accidents etc. (iii) Death/disability/missing in operation areas, due to accidents during peace time conditions circumstances of which are identical to activities during operation engagements. The operation area will be as decided by the Union Government from time to time. Encounters in such circumstances when Defence/GREF/BSF personnel are called in to assist Civil power may also be included for giving employment assistance under the scheme. Note: In the case of the dependent of the disabled personnel, the dependent of the ex- servicemen who had sustained injury/disability over 50 per cent is only eligible for the benefit of the scheme. “ Clause 3(iii) specifically states that 'operation area' contemplated therein will be with reference to the area as O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 10 decided by the Union Government from time to time. The requirement and intent of Ext. P2 scheme cannot be widened or interpreted in a different manner as the court would like it to be, but has to be considered as provided. Since the provision is unambiguous, the term 'operation area' has to be understood as decided by the Central Government and confining the benefit only to the particular class or group of people who come within the four corners of the scheme as specified and notified. This being the position, the only question to be considered is whether the place where the death of the husband of the petitioner took place was an 'operation area' or not. The petitioner has also a case as raised in paragraph No.4 of the reply affidavit that the deceased husband of the petitioner was proceeding to Army Headquarters at New Delhi as part of his official duties and he was serving 75 Armoured Regiment being posted at Jodhpur and further that Jodhpur was very much an 'operation area' irrespective of the fact whether Merta Road Junction was an 'operation area' or not. O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 11 11. In view of the rival contentions and assertions from both the sides, this court vide interim order dated 25.07.2007 had directed the respondents to file an affidavit as to the classification of the concerned area so as to make it clear whether the death actually occurred in an 'operation area' or not. Pursuant to the said direction, the learned Central Government Counsel for respondents 4 and 5 , on the basis of the instructions received has filed an affidavit dated 09.10.2007 asserting that neither Jodhpur nor New Delhi has been classified as an 'operation area'. 12. It is pointed out by the learned counsel for the petitioner that in the affidavit filed by respondent Nos. 4 and 5, they have not produced any notification as to the declaration of the area as not an 'operation area'. This court does not find any merit in the said contention; particularly in view of the fact that it is a negative aspect, which cannot be proved by adducing any positive evidence. On the other hand, when an affidavit has been filed asserting that the concerned area was not an O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 12 'operation area', it is for the petitioner to rebut the said averment by producing the relevant notification, if any, categorising the concerned area as an 'operation area'. Above all, it is to be noted that the petitioner is not aggrieved with any of the stipulations contained in Ext.P2 scheme confining the benefit to such class of persons whose death occurred in such 'operation area' as specified by the Central Government. Since Ext.P2 scheme has not been subjected to challenge, nothing further requires to be considered in this regard and the matter is to be confined to the facts and circumstances, as now available before the court. In the above circumstances, this court does not find any tenable ground to grant the reliefs prayed for and both the Original Petition and the Writ Petition are dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk O.P. No. 38809 OF 2001 & W.P.(C) No. 12706 OF 2004. 13 P.R. RAMACHANDRA MENON,J. ................................................... O.P.No. 38809 OF 2001. ................................................... Dated this the 13th February,2009 J U D G M E N T