46. Smt. Asha Srivastava Vs. UOI and others. 1992 (1) SLJ 38. The Govt. had rejected the application of the Petitioner on the ground that no vacancy was available:-The Hon’ble Court held, that order was not justified. Hon’ble Court directed the respondents to appoint the applicant even by creating suprenumerary post.
47. Smt.C.Jhansi Vs. General Manager, Indian Drugs and Pharmaceuticals Ltd, Hyderabad, reported in 1991 (3) SLJ 25. Application of the petitioner for appointment as clerk on compassionate grounds was not accepted due to ban on recruitment. Held, the ban not attracted in such cases as these vacancies arose after such ban. It may be true that there is critical financial condition prevailing in the country but creating suprenumerary POST at least to the equal number of posts that are available at the time of imposition of ban will not come in the way of financial burden, the one that was available on the date of imposition of ban.
48. Sir, while eagerly praying for an out-of-court settlement to enable you to handle this Notice in the proper manner, I would like to quote from the “REPORT OF THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION”
“Para no- 7.10.” discusses “JUDICIAL DELAYS” of which the sub-para no-7.10.3 can be read as follows:-
“It is possible for the govts. to have a ‘litigation policy’ directed towards reduction of govt. litigation and protection of public interest by preventive strategies. For instance, in civil cases when a notice under Section 80 CPC is received, the matter should be thoroughly and carefully examined instead of the present tendency of giving a routine recording as file without application of mind, that “the threatened suit may be awaited”.
49. Sirs, I do not know, whether the Auditors and Politics will permit the Decision Makers, to SUO-MOTO, neglect the ban imposed by the DTC Board, or to SUO-MOTO appoint my clients in the DMRC, in the 5% of vacancies arising in it, as mandated by the law cited. Resultently, a litigation will have to be filed. My clients are destitute applicants, thus, I want to decide a forum now iteslf, so that you will not raise JURISDICTION OBJECTIONS at a later date. Eventhough, the post of Clerk is a WORKMAN under the Industrial Disputes Act, and the disputes between a clerk and the Management is to be heard by an Industrial Tribunal, in the present case, hence no appointment had taken place till now, my clients had not become a WORKMAN till today, thus, the dispute is an Administrative dispute. Eventhough, the Administrative Tribunal have powers equal to that of a High Court, to Judicial Review this litigation, I fear that, the Registry itself may return the file by saying that this is an Industrial Dispute. On the other hand, the High Court have power U/A 226, to issue Writ, on this dispute. Thus, I may choose a Fourm of High Court or Administrative Tribunal, according to the choice of the Registry. It is a HUMANITARIAN litigation and not a PRESTIGE-ISSUE for either DTC or DMRC, thus I beg to both of you to help me by giving VALUABLE SUGGESTIONS on the correct forum. Hence a JUDICIAL REVIEW is a must, I do not think that, an ARBITRATOR can be appointed for this dispute.
50. PREVIOUS CORRESPONDENCES, WHICH ARE LIKELY TO BE FILED AS LITIGATIONS PRIOR TO THE CASE TO BE FILED AFTER THIS NOTICE: Photocopies of two receipts are enclosed herewith and marked as ANNEXURE P-29 (collectively):-
(1) applications dated ...., which are already annexed as Annexure P-14 and 15, alongwith all certificates, were posted on ...., at 2340hrs, from Gol-dakkhana i.e. New Delhi GPO, to the Chairman and MD, DTC, IP Estate, New Delhi; vide Speed Post Ack Due No- EE ... IN, in an envelop weighing 200 gms.
(2) An Advocate Notice, by the same Advocate, dated 14-4-2003, requesting acceptance of the applications dated ...., which are already annexed as Annexure P-14 and 15. The notice was addressed to the Chairman and MD, DTC, IP Estate, New Delhi; vide Speed Post Ack Due No- EE .... IN,in an envelop weighing 60 gms. from Gol-dakkhana i.e. New Delhi GPO.
51. NO OBJECTION CERTIFICATE CLAUSE:- Smt.bbb, who is the Applicant no-1 and Sh.ccc, who is the Applicant no-2 to this Notice; who are the mother and brother respectively, do hereby declare their No Objection to give the compassionate employment to Kumari ddd, who is the Applicant no-3 to this notice, because, the said employment will enable her to lead a well secured life. The wife of the Applicant no-2 also do not oppose the said No Objection. In turn, Kumari ddd had already given undertaking that, she will give financial assistance, even after her marriage, to her widowed and disablied mother. Thus, if you find a vacancy for Kumari ddd, prior to any vacancy arise for Sh.ccc, kindly give her the job. At the relevant time, they will issue the NOCs in stamp paper, duly attested by Notary or SDM.
52. P R A Y E R S
I. Kindly declare that the ban imposed on the recruitment in the DTC is not applicable on Compassionate appointments.
II. Kindly give Compassionate appointment to Sh.ccc, the applicant no-2, in the cadre of Clerk, in DTC. OR
III. Kindly give Compassionate appointment to Sh.ccc, the applicant no-2, in the cadre of Conductor in DTC. OR
IV. Kindly register the name of Kumari ddd, who is the applicant no-3, as an alternative to Sh. ccc, the applicant no-2, in order to give Compassionate appointment in the cadre of Clerk, or suitable post in DTC. OR
V. The DTC is humbly prayed to take up the matter with other offices including DMRC, to provide at an early date appointment on compassionate grounds to the applicants.
VI. The DMRC is being PRAYED, to take SUO-MOTO action in this letter, with an intention to help a deserving family, at least through the applicant no-3, Kumari ddd.
VII. The DTC is humbly prayed to give a copy of the DTC Board decision, imposing ban on the recruitment on recruitments, in the DTC, with a leave to amend the notice.
VIII. The DTC is humbly prayed to give a copy of the DTC rules and regulations, governing the Compassionate appointments, in the DTC, with a leave to amend the notice.
53. Kindly take NOTICE that, in the event of not giving the relief prayed, my clients will have to file either an Application before the Central Administrative Tribunal, or Writ Petition before High Court or Supreme Court. In the event they will have to file such a litigation, you will have to bear their costs and expenditures.
54. That the first applicant is the mother and the 2nd and 3rd applicants are her son and daughter. The first applicant is medically disabled, thus unable to move outside of the house. The third applicant is a student. Thus, the only applicant, who is fit to travel outside is the second applicant, who is Sh.ccc. All are residing in a joint family and dependent upon the family pension being received by the 1st applicant. Thus, the 1st and 3rd applicant do, hereby issue the POWER OF ATTORNEY to AUTHORISE the Second applicant, to do following works, in connection with Compassionate Employment:-
(1) To Affix his sign on all the pages of the legal notice, reminders, postal complaints of non-receipts of AD Cards etc. However, entire notice will be read aloud and understood by the 1st and 3rd applicants, and they too will sign on the last page, to certify the same.
(2) To attest the correct true copies of all the annexures, to this notice.
(3) To appear IN PERSON, on behalf of all the three applicants, before the DTC/DMRC and other addressees.
The 1st and 3rd applicants hereby do declare that they will ACCEPT all the actions done, in connection with this work only, by the 2nd applicant, till the completion of the legal proceedings or till this POWER OF ATTORNEY will be withdrawn.
Kindly acknowledge receipt and give reply.
Thanking You.
Yours truly,
Sd/- Advocate.
READ AND EXPLAINED IN HINDI AND UNDERSTOOD THE CONTENTS AND THEY ARE TRUE AND CORRECT TO OUR KNOWLEDGE AND BELIEF. IT IS ALSO CERTIFIED THAT THE OCUMENTS ENCLOSED HEREWITH ARE TRUE COPIES OF THE ORIGINAL.
Sd/- Clients/ Applicants 1, 2 and 3.
===========================
CASE LAW with peculiar facts
1. Any fraud or willfull misrepresentation written in the Application for Compassionate employment will result in not getting job. Kindly read the judgement of the High Court of Delhi, in the case: 2007 (137) DLT 84 : 2007 (2) AD(Del) 595, Ved Prakash Versus New Delhi Municipal Council, at para 9:- “Admittedly, the petitioner and his mother had suppressed the fact of employment with a sole objective to secure employment for the petitioner. There is, thus, no illegality on the part of the respondent in not permitting the petitioner to join his duties on account of the said vital suppression made by the petitioner and his mother. Even otherwise it is a well known and cardinal principle of law that fraud vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. By filing a false affidavit wherein the mother of the petitioner has stated that she had no independent source of income and declaration of the petitioner that his mother is a 'house wife' are acts of fraud committed by the petitioner and his mother. The petitioner and his mother thus practiced fraud with a view to secure employment on compassionate ground and therefore, no relief can be given to such a petitioner who is a wrong doer and has no scrupulous. The writ jurisdiction is an equitable jurisdiction and no discretion can be exercised in favour of such a petitioner. Thus petition is totally devoid of merit”. Thus, if Mr.C gets compassionate job, and Mr.D comes to know that there is fraud committed to get the job, Mr.D can file a Quo Warranto Writ Petition. It does not mean that, if Mr.C will loose the job, Mr.D only should get that. Any other candidate may get that job. This Quo Warranto Writ Petition can be filed even if Mr.D was asked to give No Objection Certificate to let Mr.C get the job.
2. If the deceased employee had been a delinquent employee, his dependents can be denied Compassionate employment, please see para 9 of the judgement:- 2004 (113) DLT 152 : 2005 (2) SLR 84 : 2004 LE(Del) 502, Suman Lata Yadav Versus Union of India:- While it is true that the prime object is to provide succour and immediate relief, yet the deceased's service record or the factum of disciplinary proceedings and punishment meted out to him, cannot be said to be an irrelevant factor. The possibility of denial of compassionate appointment to the L.Rs of deceased on account of deceased employee having a tainted service record, would serve as a deterrent to employees from indulging in misconduct. It can act as an incentive for those maintaining discipline and probity. Besides, when the availability of appointment and opportunities is limited, there is nothing wrong in preferring L.Rs., of those employees with clean record over the L.Rs., of those, who have had a tainted record. Moreover, as is seen, there is no complete debarment or embargo. It is a factor, which is taken into consideration by the employer, while evaluating the cases of compassionate appointment. There may be cases, where there is such a grave hardship and if the misconduct of the deceased employee was of a minor nature the Authority still has the discretion to make a compassionate appointment.
3. Compassionate employment is not given to re-employed or contract employees dependents, please read from the para 12 of the judgement 2008 (2) LBESR 188 (Allahabad) : 2008 (3) ADJ 481; Kripa Shankar Tiwari Versus District Inspector of Schools, Fatehpur and Another:- There is yet another facet to this case. According to law, the father of the petitioner stood retired on 30.10.1988, but keeping in view the interest of the students, extension of service till the end of the academic session was granted to him under the Rules so that the teaching in the institution is not affected. This session extension could only be treated as an extension of service till the end of the academic session. It would, therefore, be akin to a fixed term appointment, automatically terminating the contract of service at the end of the academic session. Such fixed tenured employees cannot be treated as regular employees whose dependants could seek compassionate appointment, at best, they could claim the salary up to the period of expiry of the aforesaid contract. It has already come on record that the entire salary uptil 30.6.1989 has already been paid to the petitioner's mother and, therefore, on this ground also the petitioner is not entitled to compassionate appointment.
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CHAPTER 11 : ENVIRONMENTAL LAW
Question:- Your client is an Ashram at Delhi, which want to evict the neighboring Vehicle Mechanics colony, which is working from Government Land. Necessary informations can be presumed, you have two clients, both are Residents Welfare Associations, name aaa and bbb.
BY REGD POST/ Speed Post ACK DUE
TOTAL ... PAGES
New Delhi
Dated:- Feb .....
From,
1. First Complainant:- Shri........
M/s.aaa Residents Welfare Association
2. Second Complainant:-
Shri........
M/s.bbb Residents Welfare Association
Through: Advocate ......
To,
1. Central Pollution Control Board, Through the Officer In Charge, New Delhi.
2. Municipal Corpn. of Delhi, Through the Commissioner, Town Hall, Delhi-110006.
3. Delhi Police, Through the Commissioner of Police, Police Headquarters, IP Estate, New Delhi-110002.
4. The Joint Commissioner/ DCP (North), TRAFFIC, Delhi.
5. Hon’ble Lt.Governor of Delhi, Raj Nivas, Delhi.
6. National Ground water Authority, Through the Officer In charge, New Delhi.
NOTICE U/S 19(b), Environment (Protection) Act,1986.
AND
NOTICE U/S 49 of the Water (Prevention and Control of Pollution) Act, 1974.
AND
NOTICE U/S 43(1)(b) of the Air (Prevention and Control of Pollution) Act, 1981.
AND
Section… of the MCD Act, about Municipal Nuisance.
AND
NOTICE U/S 80 CPC and Sec.478 Municipal Corporation of Delhi ACT, FOR ENFORCEMENT OF FUNDAMENTAL AND LEGAL RIGHTS.
Sirs,
1. This Notice is being issued by two welfare associations, namely:-
1.1. M/s.aaa Residents Welfare Association, having address of:..., represented by Shri........ Hence there are more than one Addressees, True Copy of the resolutiion authorising him to sign is enclosed ANNEXURE P-1.
1.2. M/s.bbb Residents Welfare Association, having address of:..., represented by Shri........ Hence there are more than one Addressees, True Copy of the resolution authorising him to sign is enclosed ANNEXURE P-2.
2. Whereas Offences under Sections 7, 8 etc of the Environment (Protectn) Act,1986 has been committed by a sum total of .... shops, whose details are given in the ANNEXURE P-3 to this Notice. They are running shops even when this Notice is send, thus, on each day, there is a new and recurring Cause of Action. The Accused Shops/ industries are carrying on industry, operation etc creates environmental pollution by permitting or causing emission of “hazardous substance” into the environment of the complainants; within Section 2(b) and (e) of the Environment (Protection) Act,1986.
2.1. Please note that, these shops also commit offences under Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974. To explain:- (1) They discharge sewage and Trade Effluents into Land, that is Waste Oil and other wastage they drop into the Land is absorded there itself, which pollute Under Ground Water. (2) They draw Delhi Jal Board Water (Clarification: this Govt Office is given names of: ... Water and Waste Water Authority – Author); or Tube Well water, to clean the Vehicles and Vehicle parts, which is also absorbed by the land and it also pollute underground water. They are running shops even when this Notice is send, thus, on each day, there is a new Cause of Action. What they discharge is “trade effluent”. They pollute the underground water by altering it’s physical, chemical or biological properties by discharging trade effluent, thus creates nuisance and render such water harmful and injurious to the health of the Complainants for domestic, commercial, industrial, agricultural (kitchen-garden) and other legitimate uses and also for the life and health of animals and plants Under Sections 2(e) and (k) of Water (Prevention and Control of Pollution) Act, 1974. The contents of para 9.8, infra also may kindly be read here, which are not being repeated for the sake of brevity.
2.2. Please note that, these shops also commit offences under Sections 17(1)(g), 22 etc of the Air (Prevention and Control of Pollution) Act, 1981. These shops are Industrial Plants within the Definitions of Air Act, which causes Air and Noice Pollution. To Explain:- The accused shops are functioning at a visible distance from a Religious Establishment at Delhi, which have huge followings and regular Satsang/ Bhajan Meetings. It causes huge traffic of vehicles, by Advocates and LitigantsM/s.aaa Residents Welfare Association, having address of:..., Devotees and others. It is estimated that, .... Vehicles come to this Area, during 0800 hrs to 1800 hrs. There is also Inter State Bus Terminal, which causes 24 hours entry and exit of buses and other Vehicles. The emission of Carbon Monoxide and other emissions they cause into the air is in excess of standards laid down by the Pollution Board. They are running shops even when this Notice is send, thus, on each day, there is a new Cause of Action. Because of these Industries/ shops, there is presence of “air pollutants”, namely solid, liquid, gaseous substance, noice pollution etc in the atmosphere of the complainants in such concentration as are tend to be injurious to human beings, animals, plants, property and environment. These shops are “industrial plants”. The necessary ingredients of Section 2(a), (b) and (k) of the Air (Prevention and Control of Pollution) Act, 1981; are committed by the Accused shops.
3. We hereby give notice of 60 days U/S 19(b) of the Environment (Protectn) Act,1986, of our intention to file a Writ Petition before Hon’ble High Court of Delhi or Supreme Court of India or a complaint in the competent Hon’ble Court against all you Addressees, who are responsible to ensure that, shops will not cause pollution and/ or the shops listed in the Annexure P-3; for violation of Sections 2(b), (e), 7, 8 etc the Environment (Protectn) Act,1986.
3.1. This is also a Notice of 60 days U/S 49 of the Water (Prevention and Control of Pollution) Act, 1974, of our intention to file a Writ Petition before Hon’ble High Court of Delhi or Supreme Court of India or a complaint in the competent Hon’ble Court against all you Addressees, who are responsible to ensure that, shops will not cause pollution and/ or the shops listed in the Annexure P-3; for violation of Sections 2(e), (k), 25, 26 etc of the Water (Prevention and Control of Pollution) Act, 1974.
3.2. This is also a Notice of 60 days U/S 43(1)(b) of the Air (Prevention and Control of Pollution) Act, 1981, of our intention to file a Writ Petition before Hon’ble High Court of Delhi or Supreme Court of India or a complaint in the competent Hon’ble Court against all you Addressees, who are responsible to ensure that, shops will not cause pollution and/ or the shops listed in the Annexure P-3; for violation of the Sections 2(a), (b), (k),, 17(1)(g), 22 etc of the Air (Prevention and Control of Pollution) Act, 1981.
4. In support of our notice, we are enclosing the following documents as evidence of proof of violation of the Environment (Protection) Act,1986.
4.1. In support of our notice, we are enclosing the following documents as evidence of proof of violation of the Water (Prevention and Control of Pollution) Act, 1974.
4.2. In support of our notice, we are enclosing the following documents as evidence of proof of violation of the Air (Prevention and Control of Pollution) Act, 1981.
5. The Evidences are listed as follows:-
5.1. The Photographs of the Accused Shops, is enclosed and marked ANNEXURE P-4 (Collectively). Negatives will be produced before any of you addressees, if summoned. Otherwise, they will be filed before Hon’ble Trial Court. In the High Court, only Writ Petitions can be filed, which do not require depositing of any Negatives, however, if any Application will be moved by any parties, that will be filed.
5.1.1. A copy of this Notice, all the Annexures, and Photographs and the Superior quality Scanned copy of the Negatives can be found in the Website: http://www.savetheashramfromdirt.com.in. Prior to issuing this Legal Notice, the undersigned Advocate had examined the said web-site and confirmed that, Negatives of the Photographs and other Annexures had been pasted in such a proper manner that, with a good quality of Scanner, prints of the photographs can be obtained directly from the Negatives pasted in the above web-site.
5.1.2. In the past, the undersigned Advocate had found a Petitioner finding difficulty in the Court of a Learned Single Judge, at the Hon'ble High Court of Delhi, regarding supply of Advance copies of the Petition, in which eviction of the Illegal occupants in the Foot-paths were prayed. Whereas the Advocate for the Respondent submitted that: “all the respondents have not been served”, the Advocate for the Petitioner had to reply “we do not know, how many respondent are there”. In this case, the said difficulty will not take place. Each affected person can visit the said web-site, http://www.savetheashramfromdirt.com.in; which is having multiple fire-walls to ensure that cannot be hacked, and contents cannot be spoiled. After visit, can download any number of copies of the Legal Notice, Annexures and Negatives, and take appropriate Actions.
5.2. Affidavit of Sh....., the Photographer, who took above photographs, is enclosed and marked ANNEXURE P-5.
5.3. Affidavit of Sh...., who had packed Soil from the area, to send to Laboratory Report, is enclosed and marked ANNEXURE P-6.
5.4. Laboratory report, stating the Soil contains hazardous waste namely:-.... is enclosed and marked ANNEXURE P-7.
5.5. Extracts from the copy of the Master Plan for Delhi, showing the Area is a Green Belt, is enclosed and marked ANNEXURE P-8.
5.6. Copy of the News Paper Advertisement published in the News Papers Times of India, Hindustant Times, Hindustan, and Punjab Kesari, Delhi; which reads “to evict vehicle mechanics from the surrounding areas of Ashram, necessary Legal Notice is getting issued, parties who are interested to object eviction is requested to visit the website http://www.savetheashramfromdirt.com.in. To download the contents and can send reply to the address stated in the said web-site. The said Advertisement is enclosed and marked ANNEXURE P-9.