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2024 DIGILAW 35 (UTT)

State of Uttarakhand v. Saumya Pande

2024-01-08

MANOJ KUMAR TIWARI, VIVEK BHARTI SHARMA

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JUDGMENT : Shri Manoj Kumar Tiwari, ACJ. This is an intra-court appeal, filed by the State of Uttarakhand, challenging the judgment dated 23.05.2022 passed by learned Single Judge in Writ Petition (M/S) No.382 of 2022. The State/appellant has also challenged the order dated 10.10.2022, whereby its review application, was dismissed. 2. Impugned judgment dated 23.05.2022 is extracted below:- “As a consequence of the world being affected due to covid-19, there had been circumstances where the parents of the minor children had expired due to covid-19 and consequently, the department of Women Empowerment and Child Development, to the State of Uttarakhand had issued a Government Order dated 17.06.2021. If that government order no. 143/17(2)/2/2021 is taken into consideration, it reads as under; It provided for an extension of the benefit, as provided by the said government order, in relation to all those casualties of the parents of those infants. who had not attained the age of 21 years and whose parents had met with the sad demise between 01.03.2020 to 31.03.2022, on account of (1) Covid19 Pandemic, (2) or because of any other disease, the petitioner claims, that their claim will fall to be under the second clause, where the death was caused because of the fact, that the mother of the petitioner was suffering from migraine, but, she has met with the said demise on 23.04.2021, due to the said medical problem and their claim will fall under clause (2) as referred above. The petitioner had moved the relevant application under the said policy decision of the State, for the purposes of extension of benefit under the scheme floated by the Child Welfare Department, which was said to have been verified by its Nodal Officer and forwarded the same for its consideration. but, the same has been rejected by the impugned order no. 1092 dated 24.01.2022, on the ground that the applicant had not been able to established the fact duly supported by document, that what was the reason for death of the mother of the petitioner. but, the same has been rejected by the impugned order no. 1092 dated 24.01.2022, on the ground that the applicant had not been able to established the fact duly supported by document, that what was the reason for death of the mother of the petitioner. In fact, if the principal government order is taken into consideration, it only require the processing of the application through a nodal officer, which was to be forwarded for extension of benefit under the scheme and the rejection of the same on the ground of non-establishment of the reasons of death, is absolutely untenable for the reason being, that it was not one of the pre-conditions, which was provided under the government order under which the benefit was to be extended. Learned Standing counsel has submitted that the government order, as it was issued by the State Government, providing for the benefit to the minor survivors of the victims of covid-19 or who had died because of any other disease, between 01.03.2022 to 31.03.2022. The procedure for filing of an application, was later on introduced for the first time by an amendment notification no. 277/XVII/21-2/2021 dated 29.04.2022. In fact, the procedure on which the reliance has been placed by the learned Standing Counsel, as contained under its clause 3. would not govern the case of the petitioner for the reason being that the government order dated 29.04.2022, since being an executive order, which has been passed subsequent to the order of rejection on 24.04.2022, it would not govern the petitioner's claim which already stood processed by the competent nodal officer vide its recommendations made on 19.09.2021. The reason for non-acceptance of the arguments, as it has been extended by the Standing Counsel is that the executive directions issued by the respondent subsequent to the claim raised and subsequent to even forwarding of the claim will not have a retrospective effect because being procedural in nature and since specification of the disease, was not one of the condition precedent which was provided under the government order, which included the cause of death, due to any other disease, that itself would suffice if the death was caused within the said time slot as provided in the government order, as enforced by the State on 17.06.2021 i.c. between 01.03.2022, the fact that the mother of the petitioner had died on 23.04.2021. is not disputed by the respondents counsel or in their pleadings raised in the counter affidavit. Hence, the impugned order cannot be sustained. The same is quashed. The writ petition is allowed. The respondents are directed to process the application of the petitioners as forwarded by the Nodal Officer on 15.09.2021, for the purposes of ensuring the remittance of the benefit, which the petitioners would be entitled to receive under the government order as issued by the State on 17.06.2021. It is hope and trusted, that looking to the age of the minor girls who are the petitioners herein, the decision in that regard would be taken and the benefit would be ensure to be extended within a period of six weeks from the date of presentation of certified copy of this judgment.” 3. Learned counsel for the State/appellants submits that the impugned judgment is unsustainable, as there was no material on record to show that death of mother of the respondents was caused due to Covid-19 and the surviving parent (father of respondents) owned 2.431 hectare land in Village Kaniya Tehsil Ramnagar, District Nainital. Thus, according to learned State Counsel, respondents were not eligible for the benefit of Government Policy, contained in G.O. dated 17.06.2021. 4. Per contra, learned counsel for the respondents/writ petitioners has drawn our attention to letter/order dated 24.01.2022 passed by District Probation Officer, Haldwani, Nainital, whereby claim of the respondents, for monetary benefit under the Government Policy, was rejected. 5. Perusal of said order reveals that respondents’ claim has been rejected only on the ground that cause of death of respondents’ mother could not be ascertained from the hospital. Thus, learned counsel for the respondents submits that the contention raised by learned State counsel, regarding the assets owned by father of the respondents, is irrelevant. He further submits that during Covid-19 pandemic, in view of the guidelines issued by the Government of India, autopsy of bodies were not being performed and there is hardly any death certificate, in which cause of death is indicated as due to Covid-19. He further submits that learned Single Judge has dealt with all the issues in great detail and has rightly held that respondents are entitled to the benefit of policy decision taken by the State Government. 6. We find substance in the contention raised by learned counsel for the respondents. He further submits that learned Single Judge has dealt with all the issues in great detail and has rightly held that respondents are entitled to the benefit of policy decision taken by the State Government. 6. We find substance in the contention raised by learned counsel for the respondents. Since the claim of respondents was rejected only on the ground that cause of death of their mother could not be ascertained, therefore, plea of sufficient financial means, available to the father of the respondents, loses its significance. The State authorities cannot develop their case by pleading something, which is not reflected in the impugned rejection order, in view of the law laid down by Hon’ble Supreme Court in Mohinder Singh Gill vs. Chief Election Commissioner (1978) 1 SCC 405 . 7. In such view of the matter, we concur with the view taken by learned Single Judge. There is no scope for interference with the impugned orders. Special appeal fails and is dismissed accordingly.