(Court’s order whether the case is or not approved for reporting.) v. Union of India

Judgment

6. Union of India through Secretary Ministry of Defence, New Delhi Engineer-in-Chief, Military Engineering Service, Army Headquarters, Kashmir House, DHQPO New Delhi Chief Engineer, (EIC2) Military Engineering Service, HQ Central Command, Lucknow Chief Engineer, Military Engineering Services, Bareilly Zone Sarwatra Bhawan, Station Road, Bareilly Commander Works Engineer, Military Engineering Service, Dehradun Garrison Engineer, Military Engineering Service, …………. Respondents Dehradun Sri Ravindra K. Raizada, Advocate for the petitioner A.S.G. for the respondents. Dated: 31.3.2006 Hon’ble Rajesh Tandon, J. Heard Sri R.K. Raizada, counsel for the petitioners and Assistant Solicitor General for the respondents. The present Writ Petition is directed against the refusal letters issued by the Respondent No. 4 on 3.1.2004,

29.3.2004, 6.8.2004, 5.02.2005, 08.02.2005, 06.05.2005 and on 09.05.2005 and letter dated 29.04.2005 by the respondent 3 no: 5, to provide employment on compassionate ground to the petitioner no.2. It has been communicated to the petitioners that there are more deserving cases than the case of the petitioners and the number of vacancies being limited to 5% of the total vacancies of a year, the case of the petitioners having been reviewed thrice by the respondents, and the request of the petitioners for employment on compassionate ground can not be entertained.

The facts of the case are that Mr. Ramesh Chandra Gupta, was initially appointed as Mazdoor w.e.f. 5.11.1972 in Military Engineering Services. Subsequently, Mr. Gupta was promoted as QPT w.e.f. 15.11.1975. He was further promoted as PHO

4.10.1977 and lastly as Pump House Operator/FGM HS2 w.e.f.

1.1.1997 and worked till the date of his death on 7.5.1997. Mr. Gupta died because of heart failure after a serious illness and when Mr. Gupta died, he was in service. Petitioner no:1, wife of Late Mr. Gupta is an illiterate lady of 47 years of age and the petitioner no:2 is the eldest son of Late Mr. Gupta. It is also not disputed that that at the time of death of Mr. Gupta. The deceased left the petitioner no.1, his wife and three minor children including the petitioner no.2. The record discloses that at the time of the death of his father, petitioner no.2 was minor. In the year 1999, the petitioner No.1 applied to Garrison Engineer Military Engineering Service, Dehradun Cantt, Dehradun Uttaranchal/ Respondent No. 6 to provide employment on compassionate ground to his son, the petitioner no.2. In support of the claim for appointment on compassionate ground, both the petitioners furnished affidavits dated

20.07.1999, Death Certificate dated 09.07.1999 and Income 4 Certificate dated 09.08.1999 issued by Tehsildar, Dehradun which certifies the actual income of petitioner i.e. Rs.2026 P.M., to the office of respondent No:6. It appears that the consideration of the case of the petitioner no.2 was in process and the office of the Respondent no. 6 vide letter dated 16.11.2000 directed the petitioner no. 2 to appear for interview test for compassionate appointment; but subsequently, the petitioner no. 2 being minor at that time was not considered for appointment on compassionate ground and it was intimated to the petitioner No.2 that on attaining 18 years of age, the petitioners may approach the authorities. On

26.06.2001 the petitioner No.2 attained 18 year of age and thus on 7.09.2001, the petitioner no. 1 approached the Respondent No. 5 and requested for employment on compassionate ground to petitioner no.2. The office of the Respondent No: 5 vide letter dated

07.09.2001 directed the Respondent No.6 to process the application for employment on compassionate ground The petitioner no. 1 vide letters dated 27.3.2002 and 20.04.2002, through Respondent No:6, sent letters to Respondent No:4 to provide employment on compassionate ground to the petitioner no.2 But the Respondent No:4 vide letter dated 22.10.2002 rejected the claim for compassionate employment of petitioner no. 2. The petitioners continued to approach the respondents to reconsider their decision of rejection of claim of the petitioners and lastly vide letters dated 15.7.2003 and 27.9.2003, the petitioner no:2 requested the Chief Engineer, Bareilly Zone, Bareilly to reconsider his claim. The Petitioners by means of a Civil Writ Petition which was registered as Civil Writ Petition 5 No: 1676/(S/S)/2003, challenged the Order dated 22.10.2002 in this High Court on 8.12.2003 by means of order dated

31.12.2003 directed the respondents to decide a fresh, the claim for compassionate employment of the petitioner no.2 The Respondent No. 4 vide impugned letter dated

29.03.2004, followed by the impugned letter dated 06.08.2004 informed the petitioners that the claim of the petitioners for compassionate employment of the petitioner no.2 was considered in the quarterly meeting of the Board of Officers; but the claim under reference was found to be not covered under the head “most deserving candidate” and in all these impugned letters, it has been informed that in the next meeting of the Board of Officers held quarterly, the case of the petitioners shall be reviewed. In the impugned letter dated 06.08.2004, it was disclosed that eight salient points were taken into consideration by different Board of Officers in the case of the petitioner no. 2 in terms of relative merit points out of 100 point scale and in the same letter dated 06.08.2004, the number of marks allotted to the petitioner no.2 were also disclosed and on the basis of marks allotted to the petitioner no.2, the claim was stated to have been rejected by the Board of Officers. Petitioners thereafter sent a Notice dated 22.1.2005 and requested the Respondents No: 3, 4, 5 and 6 to disclose the basis of allocation of marks to the Petitioner No. 2 and requested the respondents to reconsider the claim of the petitioners. In response to the notice dated 22.1.2005, the respondent no:4, vide impugned letter dated 29.04.2005, continued to reiterate its earlier decisions taken by the Board of Officers in the meetings held quarterly. Vide letter dated

06.05.2005, the Respondent No. 4, while closing the case of the 6 petitioner no.2 annexed the Circular of the Ministry of Defence which stipulates the consideration of the case of compassionate appointment in terms of relative merit points out of 100 point scale. Now it would be appropriate to examine the reasons given by the Respondents in refusing to provide employment on compassionate ground and to examine whether the case of the petitioners comes in the category of “the most deserving case”. It has been averred on oath by the Petitioners that Mr. Gupta left no immovable property to be inherited by the petitioner No.2 and her children and at present also, there is no immovable property owned by the petitioners or any of the children of Mr. Gupta. The petitioner No. 1 has been getting pension of Rs.2339=00 P.M. and has no other means of livelihood and it has become virtually impossible for the petitioner no:1 to maintain her family within the means of pension. During the Course of arguments, it has also been argued that because of time span having passed, the petitioner shall be getting pension at the rate of Rs.1500 per month only, because after a specific span, the pension at reduced rate is admissible to the petitioner no.1. It is further clarified that the lady petitioner, after the death of her husband, initially tried to do some shall business also of selling namkeen and biscuits on commission basis; but because of various ailments, she could not continue the small business and she is now totally dependent on pension only. Thus the respondents should have accepted the plea of the petitioners that there is no means of livelihood except the pension. In the writ petition, it has also been averred that the house accommodation which was allotted to Mr. Gupta during 7 the tenure of his service, after his death, has been allotted to Shri Ghanshyam Gupta, the nephew of Mr. Gupta who is also employed in M.E.S., Dehradun and the petitioners who initially lived for a brief period with Mr. Ghan Shyam Gupta, had to leave the same house and the petitioner no:1 and all his three children have been residing in a very small rented house in a remote area of Dehradun. On the death of Mr. Gupta, the petitioner no. 1 received terminal benefits of Rs.1.69 Lakhs. It has also been averred in the writ petition that out of this amount of terminal benefits, about Rs.40,000=00 was paid against loans of co-operative society from which Mr. Gupta had taken loan in his life time and further a substantial amount was also spent to pay off the old dues against the cost of medicine etc. incurred during the serious illness of Mr. Gupta. These facts have not been denied with any conviction by the Respondents in Counter Affidavit. During the course of arguments, learned Counsel of the petitioners has also argued that because of the acute financial crisis, all the children of the petitioner no. 1 including unmarried daughters could not be married. The Ministry of Defence, Government of India has circulated a Policy titled “Scheme for Compassionate Appointment –Merit Points and Revised Procedure Selection” which was annexed with the impugned letter dated

06.5.2005 issued by the office of the Respondent no. 4 to the Petitioner No.2. This Scheme provides allocation of marks to the candidates/ claimants for the purpose of consideration whether a particular case is a most deserving case or not. (a) Family Pension- (Basic excluding DA & allowances) 8 (i) Upto Rs.1300 20 (ii) 1301-1500 (iii) 1501-1700 (iv) 1701-1900 (v) 1901-2100 (vi) 2101-2300 18 16 14 12 10 (vii) 2301-2500 08 (viii) Above Rs 2500 06 (b) Terminal Benefits (i) Upto Rs.100000 10 (ii) 100001-120000 09 (iii) 120001-140000 08 (iv) 140001-16000 07 (v) 160001-180000 06 (vi) 180001-200000 05 (vii) 200001-220000 04 (viii) 220001-240000 03 (ix) 240001-260000 02 (x) 260001-300000 01 (xi) Above Rs. 300000 NIL © Monthly Income of earning member(s) and income form Property. (This does not include the monthly family pension/pension due to the death/MBO/missing of Govt. servant but any other pension, income of all the family members (including earning members living separately should be accounted) 9 (i) (ii) (iii) (iv) (v) (vi) No income Rs. 1000 or less Rs. 1001 to 2000 Rs. 2001 to 3000 Rs. 3001 to 4000 05 04 03 02 01 Rs. 4001 to Above NIL (d) Movable/Immovable Property) Latest Market Value in Rs.) (i) (ii) (iii) (iv) (v) Nil 10 Upto 50000 50001-100000 08 06 100001-200000 03 200001and above 01 (e) No. of dependents (i) (ii) (iii) 3 and above 15 2 1 10 05 (f) No of unmarried daughters (i) (ii) (iii) (iv) 3 and above 15 2 1 None 10 05 0 (g) No of Miner children 10 (i) (ii) (iii) (iv) 3 and above 15 2 1 None 10 05 0 (h) Left over service (i) 0-5 Years (ii) Over 5 & upto 10 years (iii) Over 10 & upto 15 years (iv) Over 15 & upto 20 years (v) Over 20 Years 10 02 04 06 08 The impugned Letter dated 06.08.2004, the details of the marks allocated to the petitioner no.2 has been provided by the Respondent No. 4 to the petitioner no.2. The detailed as provided is as follows; Sr. Salient points Pts. Given by Bd. Of Out of No. Officers a. Amount of family pension - 12 b. Amount of terminal benefits - 06 c. Any other income - 03 d. Value Moveable - 08 / Immoveable property e. Number of dependents - 15 20 points. 10 points. 05 points. 10 points. 15 11 f. Number unmarried - 10 daughters g. Number of minor children - 15 h. Left service - 07 deceased points. 15 points. 15 points. 10 points. In the impugned orders/ letters it has been recorded that the family of the petitioners own a house worth Rs.25000=00 to live in. It has been averred on oath by the petitioner No. 1 that neither the petitioner no. 1 nor her children owns any house or any immovable property; but there is no basis or material so as to assume that the petitioners have any immovable property at all. Thus, the allocation of 8 marks on the scale of 10 is not proper and the petitioner No.2 ought to have been allowed 10 marks. Further, it has been specifically averred that the husband of the petitioner no. 1 had more than 16 years of service left to be served, therefore allocation of 7 marks instead of 8 marks is also not correct and 8 marks ought to have been awarded. It is correct that initially the petitioner tried to run a business of selling namkeen etc., but this is also a fact that the petitioner no.1 because of her failing illness could not carry on her said business and there is no reason to disbelieve the petitioner no.1 on this count. Thus the Respondents ought to have allowed 5 marks instead of 3 marks. Further, the petitioner No. 1 has been getting pension of Rs.2339=00 P.M. and has no other means of livelihood. During the Course of arguments, it has also been argued that because of 12 time span having passed, the petitioner no.1 shall be getting pension at the rate of Rs.1500 per month only because after a span, the pension at reduced rate is admissible to the petitioner no.1. Therefore, if at a particular time, any dependant because of higher pension is not eligible to get high marks and does not come into the category of “most deserving candidate”, after a period, because of reduced rate of pension may get higher marks and become eligible in the category of “most deserving candidate”. In Kapila Hindograni vs. State of Bihar 2003 (7) AIC 18 (SC) the Apex Court has observed as under: In the 12 Misconceptions About the Right to Food (FLAN) it is inter alia stated: “What does the Right to Food mean? Can the existence of this Right cause laziness among people? Right to Food is about respecting, protecting and fulfilling access to food producing resources and work. Therefore, the Right to Food doesn’t make people lazy but busy, enabling them to feed themselves. Would the right to food be asking for too much from the government, and advocating for big government? The Right to Food in the context of Human Rights does not mean that the state is a super-entrepreneur determining and carrying out economic activities according to its own wisdom. In means the Right to Food Oneself, which emphasizes dignity and self- 13 reliance, very different from command economics of big government. Does the Right to Food require a moral revolution of society, allowing human rights to become the foundation of interpersonal ethics? The Right to food does not concern interpersonal ethics, but the duty to operationally the State’s obligations under Economic and Social Human Rights. Is hunger a violation of Human Rights? Lack of access to food can have many reason. If the State fails to respect, protect or fulfil this access, unless for lace of resources in a society, this must be termed a violation fo the human rights to food. Very often, obligations of states vis-à-vis the vulnerable groups and persons are obvious and so is the availability of resources in society. Is the Right to Food about good governance? Good governance is negotiable, Human Rights are not. The central concept for Human Rights is the concept of “violation” referring to the suppression of vulnerable groups and individuals, whereas the concepts of good governance all too often deal with political theory and statistical indicators. If a county has the resources, but people get marginalized or continue in deprivation, this is not bad government, but oppression, intentional or not. 14 Is the Right to Food realized if nobody is hungry anymore? Not necessarily. The Right to Food not only means that hunger and malnutrition are eradicated, but that future malnutrition can be eradicated by Court action or other comparable mechanisms holding the state accountable on its obligations under the Right to Food.” The Division Bench of this High Court in Writ Petition No: 981 (S/S)/2001 between Naresh Kumar Vs. Union of India and others [Published in 2003 (99) IFLR Page 749] while relying upon the Allahabad High Court Judgment in the case of State Bank of India Vs. Ram Pryari and others 2001 (2) U.P. L.B. & E.C. Page 1597, held that receipt of the family pension and other terminal benefits by the widow, cannot be taken to be good ground fro rejecting the case for appointment on compassionate ground and further observed at a place, “ ……….. It is common knowledge that the widow is entitled to family pension and other benefits in the event her husband dies in harness. If the plea of respondent is accepted, then no appointment can be made on compassionate ground and the scheme shall have no meaning. As such this ground for rejection is not sustainable.” Therefore, the respondents are legally bound to take this fact of reduced pension at the time of taking a decision on re- consideration of case of the petitioner no.2 and allocation of 12 marks needs to be reviewed by the respondents. In the facts and circumstances, the action of the Respondents in allocation of marks as recorded at sr. number (a), (c) (d) (h) of the Tabulation of the Impugned Order dated 15 (a), (c) (d) (h) of the Tabulation of the Impugned Order dated

06.08.2004 being faulty and irrational is quashed and Respondents are direct ed to reallocate the marks as indicated in this Judgment. The petitioners have prayed for calling the records of the persons/ dependants who have been treated in the category of “most deserving candidate”; but it would be appropriate to quash all the impugned orders vide letter dated 3.1.2004, letter dated 29.03.2004, letter dated 6.8.2004, letter dated

5.02.2005, letter dated 08.02.2005, letter dated 06.05.2005 and letter dated 09.05.2005 of Respondent No. 4 and vide letter dated 29.04.2005 of the respondent no: 5 (Annexure-1 of the Writ Petition) and direct the respondents to reconsider the case of the petitioner no.2 in the light of the aforesaid findings and observation. Further, after reallocation of marks as per the observations as referred above, if after the year 1999, the respondents have appointed those dependents who got marks lesser than the marks to be allocated on reconsideration. Thus the respondents shall appoint the petitioner no.2 in accordance with the rules. In view of above, a writ of certiorari is issued quashing the impugned orders dated 3.1.2004, dated 29.03.2004, dated

6.8.2004, dated 5.02.2005, dated 08.02.2005, dated

06.05.2005 and dated 09.05.2005 passed by respondent No.4 and order dated 29.04.2005 issued by respondent no: 5. The respondents are directed to reconsider the case of the petitioners for compassionate appointment within six weeks after obtaining certified copy of this order. 16 Accordingly, writ petition is allowed. No order as to costs. Dated: 31.3.2006 *Dhyani Rajesh Tandon, J.