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2000 DIGILAW 8 (JK)

Gh. Mohi-ud-Din v. Union Of India

2000-02-02

BHAWANI SINGH, SYED BASHIR-UD-DIN

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PER BHAWANI SINGH CHIEF JUSTICE (ORAL) 1. This appeal is directed against the judgment of Single Judge dated 20-08-1999 whereby writ petition has been dismissed on the ground of laches. 2. Ghulam Nabi Dar was line-man with the respondents. Unfortunately, he died in harness leaving behind his widow and minor Ghulam Mohi-ud-Din Dar, appellant in this case. The respondents allowed family pension to the widow who also died on 21-11-1973. Appellant got the family pension till he attained majority in 1985. The other aspect of the case is that the widow did not apply for compassionate appointment being illiterate while the appellant could not do so since he was minor. Thereafter, he studied and passed matriculation examination in 1987, fact stated in para three of the writ petition. 3. Petitioner applied for compassionate appointment in 1987. These facts have to be accepted since there is no rebuttal thereto by the respondents since they have not filed objection/reply to the writ petition. However, Single Judge heard Learned counsel for the respondents and came to the conclusion that request for compassionate appointment not justifiable and it was belated as well therefore, liable to be rejected. 4. Heard Learned counsel for the parties. Shri M.A. Qayoom, learned counsel for the appellant submitted that petitioner could not apply till he attained majority in 1985 and was studying for matriculation examination which he passed in 1987. Immediately, he submitted application which remained under correspondance with the respondents for ten years and it was rejected in 1997. Therefore, learned counsel contends that his client applied within reasonable time and the claim was rejected after ten years, therefore, there was cupable delay on the part of the appellant and the claim could not be rejected on that basis. Learned counsel also placed reliance on decision Punjab & Haryana High Court 1993 (5) SLR page 623 (Smt. Chandro Devi and another versus State of Haryana and another) holding that candidate could apply after becoming eligible and attaining majority. In para five of the judgment, it is said that: In so far as the plea of limitation is concerned, the same in facts of the case has necessarily to be rejected. There may be cases where an employee would die leaving infants behind him. In such cases, there cannot be any occasion for making any application on compassionate grounds within three years. There may be cases where an employee would die leaving infants behind him. In such cases, there cannot be any occasion for making any application on compassionate grounds within three years. It is natural that such people would acquire qualification and age for employment after doing some education which will obviously take long years from the time when their bread winner died. The limitation of three years is to be construed in that light and cannot be made applicable in every case. In other words, such a policy can be made applicable only wherein the family of the deceased there are persons who can be employed. In so far as the policy decision of the Government to give employment to one dependent of the deceased is concerned, the same has not been denied.� 5. Another decision is by Single Judge of this Court in SWP No. 440 of 1995 (Mehmood Ahmad Khan vs. State of J&K and others) decided on 24.09.1997. Both these decisions are similar to the facts of this case. Shri S.A. Naik, learned counsel for the respondents, emphasizes the point of delay in seeking the compassionate appointment. It is pointed out that the petitioner applied in 1989 while he had become eligible in 1985 when he attained the majority. 6. After giving our careful consideration to the rival submissions raised by learned counsel for both sides and examining the facts of the case and impugned judgment, we are of the opinion that there is merit in this appeal and the same deserves to be allowed. We record our reasons for having arrived on this conclusion. 7. When Glulam Nabi Dar died on 26.11.1968, petitioner was minor, being less than two years old. Obviously, he could not seek appointment on compassionate grounds. His mother did not do so being illiterate. We are examining the case of petitioner in this case and not that of widow of deceased who herself died on 21.11.1973. The family could make both ends meet from the family pension that was allowed by the respondents till the widow died and the petitioner attained majority. We are told by learned counsel for the appellant that the petitioner is still in hardship. He is being looked after by maternal uncle as he has no source of income. Therefore, it can be said that the purpose of compassionate appointment is not defeated even at this stage. We are told by learned counsel for the appellant that the petitioner is still in hardship. He is being looked after by maternal uncle as he has no source of income. Therefore, it can be said that the purpose of compassionate appointment is not defeated even at this stage. Another aspect of the case is that the petitioner attained majority in 1985. At this time, he was persuing his studies and completed matriculation in 1987. Appropriately, he applied for appointment on compassionate grounds. Contention of Shri S.A. Naik that he applied in 1989 cannot be accepted since it has not been rebutted by filing reply to the writ petition which is supported by affidavit. Further, this submission cannot be sustained in view of annexure-E dated 20.04.1989 which indicates that petitioner had applied before this date and had furnished documents alongwith the application. Assuming that there was some delay but it is not unreasonable and culpable. As a matter of fact, delay is committed by the respondents which continued to deal with the case and decided it on 05-12-1997. after eight years. 8. Decision of Apex Court reported in AIR 1999 SC 564 (Dhalla Ram, petitioner Vs. Union of India and others, Respondents) has no application to the facts of this case since there was unreasonable and un-explained delay in that case and the case turned against the petitioner while in this case, the facts plainly suggest and demonstrate that the petitioner applied within a reasonable time after becoming eligible for appointment and furnished proof in support of the claim. Delay was on the part of the respondents in deciding case for which petitioner cannot be blamed. 9. Therefore, this appeal is allowed. Impugned judgment is set aside. Respondents are directed to appoint the petitioner on compassionate ground within a period of two months.