Faryaz @ Fayaz vs Union Of India & Anr.
2015 Latest Caselaw 4350 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Judgment delivered on: May 28, 2015
+      W.P. (C) 1877/2015
       FARYAZ @ FAYAZ                               .... Petitioner
                        Through: Mr. Saurabh Dev Karan Singh and
                                   Mr. Sandeep Phogat, Advocates
                        Versus
       UNION OF INDIA & ANR.                        ..... Respondents
                     Through:          Mr. Jagjit Singh and Mr. N.
                                       Prashant Kumar Nair, Advs.
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S. MEHTA
                       JUDGMENT

% KAILASH GAMBHIR, J.

1. By this petition filed under Articles 226/227 of the Constitution of

India, the petitioner seeks quashing of the order dated 11 th November,

2014 passed by the learned Central Administrative Tribunal, Principal

Bench, New Delhi whereby the Tribunal dismissed the O.A. being No.

4209/2010 preferred by the petitioner. The petitioner also seeks a

direction to the respondents to grant him appointment on any suitable

basis in the Railways as per the announcement made by the then Railway

Minister.

2. To appreciate the controversy at hand, it would be necessary to

give a brief gist of the facts.

3. The petitioner is the son of Late Smt. Shakina wife of Mohd.

Yusuf. This lady Smt. Shakina Begum was travelling as a passenger in

Delhi-Attari Express (link train of Samjhauta Express), Train No. 4001

on 18th February, 2007, and when the train had reached near Panipat,

there was a bomb blast in the train owing to terrorist attacks, where sixty-

eight people were killed in the ensuing fire and many more were injured.

4. On the next date of the incident, i.e. on 19 th February, 2007, the

then Railway Minister announced compensation amount of Rs. 10 lakhs

for the next-of-kin of each of the deceased and Rs. 50,000 for those

injured. The Minister also announced that the Ministry of Railways

would give jobs in the Railway Department to one family member of

each Indian killed in the blast.

5. Fulfilling one of the commitments, compensation amount of Rs. 10

lakhs was paid by the Railways to the family members of the deceased

victim Smt. Shakina but insofar as the second part of the announcement

was concerned regarding providing employment to one family member of

the deceased victim, it remained unfulfilled insofar as the facts of this

case are concerned.

6. The petitioner had submitted various representations to the G.M.,

Northern Railway for employment in the Railway Department as per the

announcement of the Railway Minister and finding no results therein, the

petitioner had filed O.A. being No. 4209/2010 before the learned

Tribunal seeking a direction for his appointment on a suitable post in the

Railways. This O.A. filed by the petitioner was disposed of by the

learned Tribunal vide order dated 14th December, 2010 with a direction to

the respondents to consider the representation of the petitioner and decide

the same by passing a reasoned and speaking order within a period of

three months from the date of receipt of a copy of this order.

7. The said order dated 14th December, 2010 passed by the learned

Tribunal was not complied with by the respondents and this led the

petitioner to file a contempt petition being No. 713/2011 and vide order

dated 9th January, 2012, the said contempt petition was disposed of by the

learned Tribunal and a compliance report was filed by the respondents, in

which the stand taken by the respondents was that the competent

authority, i.e. the Railway Board has decided that the applicant may be

considered for engagement as a "Fresh Face Substitute" in the Pay Band-

1 with grade pay of Rs. 1800/- under the General Manager's discretionary

powers subject to fulfilment of extant instructions.

8. Despite the said compliance report filed by the respondents, the

petitioner was not granted employment in the Railways and vide letter

dated 6th July, 2012, the Railways finally conveyed to the petitioner that

since in his case, the criteria of 'dependency' is not adequately

established, hence, his is not a fit case for offering substitute appointment.

The said decision dated 6th July, 2012 passed by the competent authority

i.e. General Manager (P), Northern Railway, Baroda House, New Delhi

was challenged by the petitioner in a fresh OA being OA No. 2634/2013

before the learned Tribunal and the learned Tribunal finding itself in

agreement with the impugned decision of the respondent dated 6 th July,

2012 dismissed OA No. 2634/2013 preferred by him.

9. Feeling aggrieved by the decision of the Tribunal dated 11 th

November, 2014 in OA No. 2634/2013, the petitioner has now filed the

present writ petition before this Court.

10. Assailing the legality and correctness of the order passed by the

learned Tribunal, counsel for the petitioner vehemently contended that the

Tribunal failed to appreciate the fact that the case of the petitioner was

not a case for granting employment on compassionate ground to the ward

of a railway employee but was a case where he sought employment based

on the announcement made by the then Railway Minister for giving

employment to one of the family members of the victim who died in the

Samjhauta Train Bombings.

11. The counsel for the petitioner further argued that in fact, the

Railway Board vide its order dated 28th December, 2011 had approved

the appointment of the petitioner but the same was rejected by the

General Manager (P), Northern Railway in a most whimsical and

arbitrary manner vide order dated 6th July, 2012. Counsel for the

petitioner also submitted that the petitioner had fulfilled all the terms and

conditions seeking employment to Fresh Face Substitute in the Pay Band-

1 with grade pay of Rs. 1800/- in terms of the announcement made by the

Railway Minster but nevertheless the same was denied to him by wrongly

considering his case on the parameters of compassionate appointments

given to a ward of a railway employee.

12. Based on these submissions, counsel for the petitioner strongly

urged for setting aside the impugned order dated 11th November, 2014

passed by the learned Tribunal and to give a direction to the respondents

to grant employment to the petitioner in terms of the announcement made

by the then Railway Minister.

13. Rebutting the said submissions made by the counsel for the

petitioner, Mr. Jagjit Singh, Standing Counsel for the respondents

submitted that the case of the petitioner for appointment was considered

pursuant to the announcement made by the then Railway Minister

announcing compensation amount of Rs.10 lacs for the victims of

Samjhauta Train Bombings and to give employment to one of the family

members of the blast victims. Counsel also submitted that pursuant to the

said announcement, the case of the petitioner was considered and he was

not found entitled to seek appointment in Group 'D' post with the

respondents. Counsel also submitted that the petitioner was not

financially dependent on the victim as he was having his own family

comprising of his wife and four children and he was attending to their

needs through his own financial resources and therefore he was not

considered for appointment. Counsel also submitted that the ex-gratia

amount of Rs.10 lacs was paid to the family members of the deceased

victim and after having paid the said amount it was no more obligatory on

the part of the respondents to have also given an employment to the

family members of the deceased. Counsel for the respondents also

produced the original records where the case of the petitioner has been

dealt with.

14. We have heard the learned counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them.

15. The short question and surely an important one that arises in the

present case is what is the sanctity of the on the spot announcements

made by the Ministers and the others holding high positions whenever

such kind of incidents, blasts and mishaps take place.

16. It is an undisputed fact that the mother of the petitioner Late Smt.

Shakina Begum was travelling as a passenger in Delhi-Attari Express

(link train of Samjhauta Express), Train No. 4001 on 18th February, 2007,

and when the train had reached near Panipat, there was a bomb blast in

the train owing to terrorist attacks, where sixty-eight people were killed in

the resultant fire and many more were injured. The then Railway

Minister on the following day i.e. 19th February, 2007 so as to give

succour to the family members of the deceased and to the injured made

an announcement for ex gratia payment of Rs. 10 lakhs to the family

members of the deceased and a compensation of Rs. 50,000/- to the

injured. Another important announcement made by the then Railway

Minister was to give employment in the Railway Department to one of

the family members of each Indian killed in the blast.

17. The said amount of Rs. 10 lakhs as compensation was paid to the

family members of the deceased Smt. Shakina Begum but till date, in the

case of the petitioner, the second announcement made by the Railway

Minister has not yet been fulfilled. It is almost more than eight years

now, still the petitioner has been struggling to seek enforcement of the

second announcement made by the then Railway Minister. Initially, the

petitioner made many representations but the same did not yield any

result, then he approached the learned Tribunal to seek a direction to the

respondents in this regard by filing OA No. 4209/2010. The said OA was

disposed of by the learned Tribunal by giving a direction to the

respondents to decide the representation filed by the petitioner by passing

a speaking and reasoned order within a period of three months from the

date of receipt of the copy of the Tribunal's order.

18. On the failure of the respondents to take any decision within the

aforesaid period of three months, the petitioner had filed a Contempt

Petition being No. 713/2011 and after issuing notice in the contempt

petition, the respondents filed the compliance report. Based on the

compliance report, the learned Tribunal had disposed of the aforesaid

contempt petition on 9th January, 2012 stating as follows:-

"1. This contempt petition has been filed against the alleged violation of the order dated 14.12.2010. Notice of the contempt petition was given to the respondents. Pursuant thereto, the respondents have filed compliance report. Along with the compliance report, the respondents have also annexed a copy of the order dated 28.12.2010. In para 4 of the compliance report, it has been stated that the competent authority i.e. the Railway Board has decided that the applicant may be considered for engagement as fresh face Substitute in the Pay Band-1 with grade pay of Rs. 1800/- under the General Manager's discretionary powers subject to fulfilment of extant instructions and following stipulations.

2. In view of what has been stated above, the present contempt petition does not survive, which is accordingly disposed of. Notices are hereby discharged."

19. The said direction given by the learned Tribunal based on the

compliance report filed by the respondents raised a ray of hope for the

petitioner that the respondents will give him employment. But to his utter

shock and dismay, his case was rejected by an order dated 6th July, 2012

by the General Manager (P), Northern Railway, Baroda House, New

Delhi on the ground that his case was not a fit case to be considered for

offering compassionate appointment i.e. 'Fresh Face Substitute' in the

Pay Band-1 with grade pay of Rs. 1800/- as in his case, the criteria of

'dependency' was not adequately established. The said decision taken by

the respondents to deny appointment to the petitioner on the ground that

the petitioner does not fulfil the criteria of dependency, is totally

indecipherable as the respondents have considered the case of the

petitioner under the guidelines and instructions applicable for considering

the case of the ward of a railway employee for appointment on

compassionate grounds. This petitioner is not seeking employment on

compassionate ground as a ward of a railway employee. The petitioner is

the son of a victim, who died in the Samjhauta Express Train Bombings

on the fateful day i.e. 18th February, 2007. The petitioner is seeking

employment on the basis of the announcement made by the then Railway

Minister of providing employment to one of the family members of each

Indian who was killed in the blast.

20. It is an admitted case that there are no specific rules or guidelines

which govern such cases for providing employment. What is sanctity of

such spot announcements made by the Ministers and other high

functionaries when such kind of human tragedy takes place for no fault of

the citizens? In our view, when such announcements are made by the

Government or by any highest authority competent to make such

announcements, then they cannot be empty or hollow announcements

made just for momentary satisfaction of the public, particularly the

victims of such mishaps. Therefore, it is totally unfathomable that such

on the spot announcements made by the Ministers or Chief Ministers

ultimately hold no good and are mere hollow promises which are

supposedly not meant to be implemented. Very conveniently, the

respondents could have even retracted from paying the compensation as

announced by the Railway Minister, if they can do so apropos the second

announcement. The petitioner who was of the age of 30 years in the year

2007 is now 38 years of age and he has lost more than eight years running

around in the corridors of law, who is then responsible and accountable

for all his sufferings?

21. It has come on record that the Railway Board had taken a decision

to consider the case of the petitioner for engagement as 'Fresh Face

Substitute' in the Pay Band-1 with grade pay of Rs. 1800/- under the

General Manager's discretionary powers but nevertheless he was denied

appointment on the most untenable ground that is of treating his case as

that of a ward of a railway employee seeking appointment on

compassionate ground.

22. On perusal of the record produced by the respondents, we find that

the reasons for denying appointment to the petitioner was that he was a

married man having four children, and therefore, he was not dependent

on his mother Smt. Shakina and hence, his case is not a fit case for

offering substitute appointment.

23. The announcement made by the then Railway Minister nowhere

suggested that they would give employment to a dependent member of

the victim satisfying the norms laid down for compassionate appointment

but the announcement merely stated that the employment will be given to

one of the family members of each Indian killed in the blast. We do not

know as to how this theory of dependency has been introduced by the

respondents. Moreover, no well place person would come forward to

seek an appointment in Group 'D' post until and unless he is compelled

by the circumstances.

24. A catastrophic event more often than not, is unforeseen and one

cannot always be prepared to handle the consequences that ensue. The

public functionaries holding high offices in order to provide solace and

succour to those affected by such fateful events, make public

announcements promising monetary compensation and employment to

the family members of the deceased to tide over the difficult time. These

promises are the silver lining for these family members and cannot

remain unfulfilled, as otherwise people will lose faith in the authorities.

The public office holders cannot use these promises in times of distress as

a tool for salvaging public outcry and political turmoil. It no doubt goes

to the credit of the public functionaries that as representatives of the

government as a welfare State, they make these announcements on the

spot which gives a ray of hope to the families affected, but at the same

time, they being responsible for what assurances they give should be

cautious about its feasibility and foresee any circumstances that would be

an impediment to its potential practical implementation. It is a caveat for

all those who occupy offices which are in a position to mitigate the pain

and suffering of the family of the victims by way of promises, to be

responsible and mindful while making them as they are not only bound

by them morally, ethically but above all legally.

25. The Indian Railways are the lifeline of our nation as they touch the

lives of millions of people every day. Being the largest railway network

in the world, it has and still continues to play a pivotal role in our vibrant

economy. Unfortunate instances of train bombings and accidents are very

distressing for those who lose their loved ones to such mishaps and such

conduct of the people placed high up on the political ladder, as in the case

at hand, who turn their back on such promises is agonizing and appalling,

adding insult to injury. Such a somersault on promises gives an

impression to the already distraught people that those were mere empty

promises made at the spur of the moment and were never meant to be

kept. In this regard, it is for the respondents to frame rules to meet such

situations. Present is one such case where terrorist bombings on Delhi-

Attari Express (link train of Samjhauta Express) killed the petitioner's

mother and as promised by the respondents to give a job in the Railway

Department to one family member of each Indian killed in the blast, was

not adhered to, such should not be the conduct of a Govt. department like

the Railways. High Public functionaries should not make hollow

promises rather they should effectively monitor and ensure

implementation of the announcements made by them and handle all such

sensitive situations without any bias. As existing on this date, we find no

reason to deny the relief to the petitioner who was given an assurance by

none else than the highest functionary i.e. the Railway Minister and to

deny the said right to him would be a great injustice and also against our

ethics and moralities.

26. In view of the above, we set aside the impugned order dated 11 th

November, 2014 passed by the Tribunal in OA No. 2634/2013.

27. It is hereby directed that the respondents shall provide employment

to the petitioner as Fresh Face Substitute in the Pay Band-1 with grade

pay of Rs. 1800/- within a period of one month from today. We also

impose a cost of Rs. 1, 00,000/- on the respondents to be paid to the

petitioner for causing such an enormous delay in providing employment

to him, within a period of four weeks from today.

28. The proof of deposit of cost shall be filed by the respondents in

compliance of this order, with the Registrar General of this Court and for

this purpose only, the matter shall be listed before the Registrar General

on 08.09.15 for compliance of this order.

29. It is ordered accordingly.

(KAILASH GAMBHIR) JUDGE

(I.S.MEHTA) JUDGE May 28, 2015 sd