Marry Minj & Anr vs Union of India & Ors

Affidavit-of-service filed in Court today be kept with the record.

In spite of service, nobody appears for the respondents.

The petitioners' sister late Benny Minj was a constable with the Metro Railway, Kolkata. She died on 1st October, 2015 while in service. The petitioner No.2 applied for being appointment on compassionate basis. The petitioner's application has been rejected by the respondent authorities by a memo dated 16th December, 2016 solely on the ground that as per Pass Rules, she is not shown as dependant.

Learned counsel for the petitioners draws my attention to Master Circular No.16 issued by the Railway Board Establishment, Clause 3(i) whereof reads as follows:-

"It has already been provided for in Board's letter dated 4.9.1996 read with its letters dated 4.5.97 and 2.6.97 that dependency may be established through documentary proof such as Pass Declaration, Ration Card, etc., or otherwise by deputing a Welfare Inspector to inquire into the circumstances. The condition of inclusion in the pass declaration is only a facilitating factor and not intended to be a restrictive one, i.e. in case the dependency of the candidate is not covered by the pass declaration, the dependency may be established through Ration Card or through Welfare Inspector's investigations."

He then draws my attention to an inspection report dated 29th January, 2016 prepared by the Welfare Inspector wherein the said Inspector has noted that the petitioner No.2 is the unmarried sister of the deceased employee. Further it would appear from a certificate dated 15th September, 2016 issued by the Block Development Officer, Phansidewa Development Block, P.O.-Kamala Bagan, District-Darjeeling that late Benny Minj was the only earning member of her family and the petitioner No.2 was fully dependent on her. A certificate dated 24th October, 2016 has also been issued by the Sub-Divisional Officer, Siliguri certifying that the petitioner No.2 has no source of income and the entire family of the petitioner No.2 was fully dependent on Benny Minj. Learned counsel submits that it is beyond any dispute that the petitioner No.2 was a legal heir and dependent of late Benny Minj. The Pass Rules cannot stand in the way of granting appointment to the petitioner as per the Master Circular referred to above. The pass declaration is only a facilitating factor and not intended to be a restrictive one.

I find substance in the submission of learned counsel for the petitioners. There appears to be no doubt that Anna Minj is legal heir and dependent of late Benny Minj and is thus, eligible to be considered for compassionate appointment. The order rejecting the application of the petitioner No.2 cannot be sustained and is set aside.

The respondent authorities are directed to consider the application of the petitioner No.2 afresh in light of the Master Circular referred to above as also the certificate of the B.D.O. and S.D.O. Copies whereof have been annexed to the writ petition. The respondent No.4 shall take a fresh reasoned decision in the matter in accordance with the applicable rules/regulations/circulars/notifications and in light of the observations made in this order within a period of six weeks from the date of communication of this order, after giving an opportunity of hearing to the petitioner No.2 or her authorized representative. The decision so taken shall be communicated to the petitioners within a week from the date of the decision. It is expected that the case of the petitioner No.2 shall be considered sympathetically.

Since I have not invited affidavits, the allegations contained in the writ petition are deemed not to be admitted by the respondents.

W.P. 17121 (W) of 2017 is accordingly disposed of.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.