HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 2954 OF 2011
ORDER:
Petitioner is before this Court seeking a direction to the respondents to provide a suitable job in Railways according to her qualification on par with similarly-situated persons as announced by the then Minister for Railways immediately after the accident of DELTA FAST PASSENGER at VALIGONDA on 28/29.10.2005.
2. Petitioner claims to be the wife of Sri Maineni Srikanth, one of the victims of derailment of train. Immediately after derailment, the then Railway Minister announced ex-gratia and assured job to the family members of deceased. It is stated that her son and mother-in-law were awarded compensation vide Award dated 03.03.2006 in O.A.A.No. 442 of 2005 on the file of the Railway Claims Tribunal, Secunderabad for the untimely death of her husband. At that time, petitioner claims to have sent an Application seeking job on compassionate grounds, as assured. It is stated that she got information from one of her husband's friends about appointment details of 38 members who were given employment as substitutes Group D vacancies in recruitment grade of Rs.2550-3200 and after implementation of VI CPC, 2 fixation of pay of Group D employees is in grade pay Rs.1800/- in pay band-1 (Rs.5200-20200). On her repeated enquiries, petitioner came to know that the authorities sent interview letter to her in-laws' house but not to the address mentioned in the Application. On 15.09.2010, petitioner is stated to have made a representation to respondents requesting to give an opportunity and to give personal interview, but so far, there was no communication from them. According to petitioner, she passed 10th standard in 1996 and she is a widow living with her school- going minor son, hence, requests to provide employment on par with similarly-situated candidates.
3. The respondents filed counter-affidavit admitting train derailment and consequent death of petitioner's husband. It is stated that dependants of deceased passenger in train accidents/ untoward incidents are only entitled to ex-gratia compensation under 124/124A of the Railways Act, 1989, as such petitioner's family was paid admissible compensation of Rs.5 lacs. However, Ministry of Railways purely on humanitarian grounds decided that one family member may be considered for engagement in Railways in terms of Railway Board's letter D.O.No. E(NG)-II/2006/SB/13, dated 24.08.2006, with the following criteria:
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(a) The engagement shall be as fresh face substitute in Group-D post under discretionary powers of GM subject to fulfilment of the extant instructions prescribed for such appointments.
(b) Each claim for engagement is to be scrutinized individually.
(c) General Manager shall be fully satisfied in respect of the claimant's family dependence on the deceased passenger and relation of the applicant with deceased.
(d) The claimant shall satisfy the eligibility condition for the job.
The Railway Board also laid down the procedure vide No. E(NG)II/2006/SB/13, dated 22.10.2007 for considering the claims. As per the instructions, the 1st respondent constituted a three-member committee of Senior Administrative Officers to scrutinize the claims received and submit recommendations. Individual communications vide letter dated 29.09.2006 were addressed to the dependants of the passengers indicating the proposal for providing employment subject to fulfilment of conditions mentioned, advising them to submit their claims on or before 27.10.2006 for consideration. Such communication was sent to petitioner's address as per the death certificate issued by the MRO, Bhattiprolu but petitioner did not respond to the said communication hence her claim was not further processed. After a lapse of five years, she submitted the representation dated 16.09.2010 for the first time alleging that she had earlier applied for job on compassionate ground and in that Application, she had 4 clearly mentioned her present address which is factually not correct. Petitioner without assigning the reasons for the delay, had chosen to file the Writ Petition.
4. Heard learned counsel for petitioner Sri T.L. Krishna Prasad.
5. Learned Standing Counsel for Railways Mrs. Mani Deepika submits that Writ Petition is not maintainable for, it is barred by delay and latches. It is submitted that petitioner without availing any alternative remedy, filed the Writ Petition.
Learned Standing Counsel placed reliance on the judgments of the Hon'ble Supreme Court in Indian Bank v. Promila 1 and State of Himachal Pradesh v. Parkash Chand 2.
6. In Indian Bank v. Promila, the Supreme Court held as under:
" We have to keep in mind the basic principles applicable to the cases of compassionate employment i.e. succour being provided at the stage of unfortunate demise, coupled with compassionate employment not being an alternate method of public employment. If these factors are kept in mind, it would be noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms to deal with the unfortunate situation which they were faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, though as clarified aforesaid, it is only the relevant Scheme prevalent on 1 (2020) 2 SCC 729 2 (2019) 4 SCC 285 5 the date of demise of the employee, which could have been considered to be applicable, in view of the judgment of this Court in Canara Bank v. M. Mahesh Kumar {(2015) 7 SCC 412}. It is not for the courts to substitute a Scheme or add or substract from the terms thereof in judicial review, as has been recently emphasized by this Court in State of H.P. v. Parkash Chand {(2019) 4 SCC 285}.
We may have sympathy with the respondents about the predicament they faced on the demise of Shri Jagdish Raj, but then sympathy alone cannot give remedy to respondents, more so when the relevant benefits available to the respondents have been granted by the appellant Bank and when respondent 1 herself, was in employment having monthly income above the benchmark.
We have, thus, no option but to reluctantly set aside the impugned order and dismiss the writ petition originally filed by the respondents. The appeal is accordingly allowed, leaving the parties to bear their own costs."
In the above case, late Shri Jagdish Raj was survived by his wife and three minor children; Respondent No.1 was already employed and earning a salary at the time of demise of her husband and an Application for compassionate appointment was made on behalf of the 2nd respondent who was son of the deceased.
7. In State of Himachal Pradesh v. Parkash
Chand, the Hon'ble Apex Court observed that:
" In the exercise of judicial review under Article 226 of the
Constitution, it was not open to the High Court to rewrite the terms of the policy. It is well settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State 6 lays down the policy of offering employment assistance to a member of the family of a deceased government employee.
For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually rewritten the terms of the policy and has issued direction to the State to consider applications which do not fulfil the terms of the Policy. This is impermissible."
In the said case, the Application submitted by the respondent was rejected on the ground that his brother was already in the service of Himachal Pradesh Electricity Board.
The facts and circumstances in the above two cases are different, hence, they have no application to the present case.
8. Coming to the subject Writ Petition, there appears to be some confusion with regard to the address for communication. Petitioner submits that interview letter was addressed to her in-laws' house and due to their innocence / illiteracy, it was not informed to her. Whereas respondents submit that they sent the letter to the address furnished in the death certificate and as petitioner did not respond, her claim was not further processed. Petitioner is stated to have made representation on 16.09.2010 to the Chief Commercial Officer, South Central Railways requesting to give an opportunity and provide employment. Though respondents contend that she approached nearly after five years and during the interregnum, she had 7 economic wherewithal to survive, in view of the pathetic situation pleaded by the petitioner, and the Scheme announced is to provide succour for the unfortunate demise, pursuant to which nearly 38 similarly-situated members were provided employment, this Court is of the opinion that ends of justice would be met if a direction is issued to the respondents to consider the case of petitioner.
9. The Writ Petition is accordingly, allowed directing respondents to provide suitable job in the department according to the qualification of petitioner on par with similarly-situated persons pursuant to the scheme announced by the then Minister for Railways immediately after the accident of Delta Fast Passenger at Valigonda on 28/29.10.2005 within eight weeks from the date of receipt of a copy of this order. No costs.
10. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 31st October 2023 ksld