Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3899 (ALL)

Sushil Kumar v. Union of India

2016-12-02

RAJAN ROY

body2016
JUDGMENT Rajan Roy,J. Short counter affidavit filed on behalf of the opposite parties no. 2 and 3 is taken on record. 2. Heard learned counsel for the petitioner, Shri Savitra Vardhan Singh, learned counsel for the Union of India and Shri Sanjeev Singh, learned counsel for the opposite parties no. 2 and 3. 3. Learned counsel for the petitioner states that he does not want to file rejoinder affidavit. 4. The mother of the petitioner is said to have died on 10.02.2010 in harness while working with the respondents. There is a scheme of the Government of India dated 18.07.2013, a copy of which is annexed as Annexure No. 8 to the writ petition under which (a) spouse; or (b) son (including adopted son); or (c) daughter (including adopted daughter); or (d) brother or sister in the case of unmarried Cantonment Board employee, who was wholly dependent on the Cantonment Board employee at the time of his death in harness or retirement on medical grounds, as the case may be, is entitled to be considered for compassionate appointment as per the parameters laid down therein. 5. The claim of the petitioner was considered along with that of one Vishal Kumar and both the claims were rejected by two separate orders, but, of the same date i.e. 22.01.2014 and on the same ground. The only ground for rejection of the claims is that the petitioner being married son of the deceased employee is not covered by the scheme for compassionate appointment. In this regard reliance has been placed upon the answer to Questions no. 12 of the "frequently asked question (FAQs) which according to learned counsel for the opposite parties forms part of the scheme of compassionate appointment and according to which a married son is not entitled. 6. This question fell for consideration before this Court when the other person Shri Vishal Kumar filed a writ petition herein bearing Writ Petition No. 5265(S/S) of 2014; Vishal Kumar Vs. Union of India. This Court after hearing the learned counsel for the parties held that on a bare reading of the scheme a married son had not been excluded from the definition of family for the purposes of compassionate appointment under the scheme in question. Union of India. This Court after hearing the learned counsel for the parties held that on a bare reading of the scheme a married son had not been excluded from the definition of family for the purposes of compassionate appointment under the scheme in question. The operative portion of the said judgment dated 04.09.2015 is quoted herein below: - "On consideration, the submission made by learned counsel for the parties and in view of the above said facts, I am of the considered opinion that the impugned order cannot sustain as the same is based on question no. 12 of Frequently Asked Questions (FAQs) i.e. married son of the deceased employee cannot be entitled for compassionate appointment, because Note-I (b) of Clause 2 of the scheme known as Scheme for Compassionate Appointment in Cantonment Boards issued by Government of India, Ministry of Defence, Directorate General Defence Estates, Raksha Sampada Bhawan, Ulaan Bataar Marg, Delhi Canttt-10, New Delhi on 18.07.2013, which provides son (including adopted son) and from the plain reading of the Note-I(b) of clause 2 read with clause (c) and (d) of the said scheme, the position which emerges out is that as unmarried daughter, brother and sister in the case of unmarried Cantonment Board Employee are entitled for considering of their compassionate appointment. Thus, intentions of the scheme are clear wherever a married daughter, brother and sister of the unmarried Cantonment Board employee are sought to be excluded from the definition of the dependent family member, it has been so mentioned but qua the son, there is no such clarifications mentioned, meaning thereby that the married son would also be eligible for appointment on compassionate ground provided he fulfils the other requirement as mentioned in the scheme for compassionate appointment. For the foregoing reasons, the impugned order dated 22.01.2014 passed by opposite party no.4/Chief Executive Officer, Cantonment Board, Lucknow is set aside and the the said authority is directed to re-examine the case of the petitioner for compassionate appointment as per terms of the scheme. The said exercise shall be done expeditiously. With the above observations, the writ petition is allowed." 7. The said judgment does not appear to have been challenged in Appeal. There is nothing in the counter affidavit of the opposite parties to this effect nor to the effect that the same had been stayed. The said exercise shall be done expeditiously. With the above observations, the writ petition is allowed." 7. The said judgment does not appear to have been challenged in Appeal. There is nothing in the counter affidavit of the opposite parties to this effect nor to the effect that the same had been stayed. It being so and considering the aforesaid judgment, the petitioner has now challenged the rejection of his claim, as, according to him the same is squarely covered by the said judgment. 8. Learned counsel for the opposite parties has invited the attention of the Court to an order dated 12.02.2016 issued by the Directorate General Defence Estates, Government of India (Ministry of Defence) amending the earlier scheme dated 18.07.2013 and including a married son, however, with the stipulation that the matters already closed based on the earlier provision shall not be reopened. 9. Two persons similarly placed can not be treated differently. Once this Court had quashed a similar order in the case of Vishal Kumar which has attained finality between the parties, then the benefit of the said judgment ought to have been extended to the petitioner also. However, if it was not, now, at least this Court can not treat the petitioner differently, specially, in view of the judgment of this Court as this Bench does not find any reason to take a different view of the matter rather on a reading of the scheme as existing on the relevant date, the Court finds that no distinction was made therein between a married and an unmarried son while including the 'son' within the definition of family for compassionate appointment. Further more, on a reading of the provision the Court finds that the relevant factor to be considered is dependency of the son of the deceased employee and the question of marriage or otherwise is absolutely irrelevant. At best, on being married, a presumption could be drawn by the opposite parties about having independent source of income, but, that can not be conclusive as examples of married sons also being dependent upon their father, are every day experience. 10. At best, on being married, a presumption could be drawn by the opposite parties about having independent source of income, but, that can not be conclusive as examples of married sons also being dependent upon their father, are every day experience. 10. As far as the recital contained in the subsequent order dated 12.02.2016 that cases of compassionate appointment already settled shall not be reopened is concerned, present case can not be said to have been settled, as, a similar order was quashed by this Court, therefore, the law laid down as clarified by this Court should have been applied and would apply in the case of the petitioner also, he being similarly situated. Even otherwise that order does not come in the way in exercise of jurisdiction under Article 226 of the Constitution of India, as, this Court is of the view that ends of justice require similar treatment in the matter, specially, for the reasons aforesaid. Accordingly, the impugned order is hereby quashed with a direction to the concerned Official to consider the claim of the petitioner on the same terms as mentioned in judgment dated 04.09.2015 passed in Writ Petition No. 5625(S/S) of 2014. The consideration shall be made keeping in mind the date of rejection i.e. 22.01.2014. 11. As Shri Sanjeev Singh, learned for the opposite parties no. 2 and 3 states that the 5% quota of the vacancy for the year 2016 has been exhausted. Let the claim be considered against a vacancy of the next year, but, positively by 16.02.2016, as Shri Singh insists for this concession. However, it is made clear that the claim of the petitioner shall not be rejected on the ground of delay. 12. The writ petition stands allowed in the aforesaid terms.