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Smt. Anarkali Nirmal & Others v. Union Of India Thru' Secy. Deptt. Of Culture & Ors. - WRIT - A No. 22006 of 2002  RD-AH 7075 (31 March 2006)
Court no. 26
CIVILMISC. WRIT PETITION NO. 22006 OF 2002
Smt. Anarkali Nirmal & another
Union of India and another
HON. SHISHIR KUMAR, J.
By means of the present writ petition the petitioners have approached this Court for issuing a writ of certiorari quashing the order dated 23.4.2002, Annexure-6 to the writ petition passed by respondent no.2 and further for issuing a writ of mandamus directing the respondent No.2 to give appointment to the petitioner no.2 under the Dying in Harness Rules.
The case of the petitioners is that the father of petitioner no.2 late Sri Shiv Prasad Nirmal was working under respondent no.2 as Maintenance cum Store Assistant. He died on 2.4.2002 in harness. Late Sri Shiv Prasad Nirmal left behind him a widow and three sons. On 18.4.2001 the petitioner no.2 submitted an application for consideration of his case for compassionate appointment. Subsequently, the petitioner sent a reminder but nothing has been done and no orders were passed. Then the petitioner has approached this Court by way of Writ Petition No. 6252 of 2002 which was disposed of finally-vide its order dated 14.2.2002 directing the respondent-authority to consider the case of the petitioner for appointment under the Dying in Harness Rules. The petitioner submits that by order dated 23.4.2002 the claim of the petitioner has been rejected without assigning any reason and one of the grounds taken in the order is that the competent authority has taken into consideration the other factors and the petitioner has not been found suitable on merit for offering the compassionate appointment.
It has been submitted on behalf of the petitioners that from the perusal of the aforesaid order dated 23.4.2002 it is clear that the order has been passed in a very mechanical manner without assigning any reason that under what circumstances and on what grounds the application for consideration of the petitioner for appointment under the Dying in Harness Rules has been rejected. Admittedly, in view of the circular issued by the Ministry of Personnel 5% of the vacancies has to be filled up by appointing the persons under the Dying in Harness Rules. All these factors have not been disclosed by the respondents while deciding the application of the petitioner .As from the perusal of the order it is clear that the order dated 23.4.2002 is an order of non-application of mind without assigning any reason, as such the same is liable to be quashed.
On the other hand, Sri R.R.K. Mishra, Addl. Standing counsel submitted that after the constitution of Central Administrative Tribunal, this Court has no jurisdiction to entertain the writ petition in view of the Constitution Bench judgment of the Apex Court and the writ petition is liable to be dismissed on the ground of alternative remedy.
In support of his contention the petitioners have placed reliance upon a judgment dated 24.4.2003 passed by the Tribunal in a case in which the applicant had sought compassionate appointment after the death of her husband and she filed a claim petition before the Tribunal and the Tribunal has rejected the application on the ground that it is not maintainable as the husband of the petitioner was serving in Allahabad Museum and there is no notification by the Central Government that the employees of the Museum will be treated as the employees of the Central Government.
In view of the aforesaid fact as the Tribunal has already rejected the claim of the persons like the petitioners, therefore, this Court has jurisdiction to entertain the writ petition and the writ petition is being decided on merit.
I have heard the learned counsel for the petitioners and the respondents and have perused the record. Admittedly the husband of the petitioner no.1 was working and died in harness and the application was filed within time but the order-dated 23.4.2002 has been passed rejecting the application without assigning any reason. In para 5 of the counter affidavit the respondents have come with a case that in view of the instructions issued by the Government of India, Department of Personnel only 5% of the vacancies has to be filled up under the Dying in Harness Rules. Further it has been said that as the petitioner no.1 has already received the amount to the tune of Rs.4,25,972.00 as the gratuity amount as well as the fund and other benefits and the family pension to the tune of Rs.4373/-per month is being paid to the petitioner no.1, therefore, the competent authority taking into consideration the aforesaid fact has rejected the claim of the petitioners. In my opinion the finding or reason, which has not been recorded in the impugned order, cannot be substituted by way of an affidavit. The impugned order has to be seen according to its reason, which has been mentioned. Nothing can be substituted by way of filing a counter affidavit. From the perusal of the record it is clear that no reason has been recorded and the order passed by the respondents appears to be an order passed in a very mechanical manner without assigning any reason, as such it will be presumed that the order dated 23.4.2002 is an order of non application of mind. As regards the financial assistance which has been given to the widow of the employee, the Apex Court has considered the aforesaid fact and in a judgment reported in 2004 (7) SCC 265, Punjab National Bank Vs. Ashwini Kumar Taneja has held that the retiremental benefit and other benefits which have been paid to the widow that cannot be taken into consideration for the purpose of considering the case under Dying in Harness Rules.
In view of the aforesaid fact, I am of opinion that the order-dated 23.4.2002 is liable to be quashed and is hereby quashed. As the order dated 23.4.2002 has been quashed the matter is remitted back to respondent no.2 to consider the claim of the petitioners in view of the observations made above and will also take into consideration the judgment of the Apex Court and shall pass an appropriate detailed and reasoned order according to law regarding consideration of the case of the petitioners under the Dying in Harness Rules preferably within three months from the date of production of a certified copy of this order before him.
With these observations the writ petition is disposed of. There shall be no order as to costs.
W.P. No. 22006 of 2002
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