Telangana High Court

M.Suma vs Union Of India, Rep.Byits General ... on 31 October, 2023

Bench: Nagesh Bheemapaka

           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,

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:

(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

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

(2020) 2 SCC 729

(2019) 4 SCC 285

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

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