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2003 DIGILAW 650 (MP)

Aarti Aakulwar v. State of M. P.

2003-05-02

A.K.SHRIVASTAVA, DIPAK MISRA

body2003
ORDER Misra, J. -- 1. Not for nothing centuries back it had been said when justice walks in company of mercy the purpose of law is sub served. Justice without mercy sometimes looks quite barren and to have the final rose in a barren land justice has to be wedded to mercy. The present writ petition frescoes a picture where the husband of the petitioner, an erstwhile technician in the Department of Telecommunication, presently named as Bharat Sanchar Nigam Limited (for brevity 'BSNL') missed from the office of BSNL in the month of November, 1999, possibly never to return, as he has not yet returned to his family. The agonised wife, who is petitioner before us, lodged an FIR which gave rise to Crime No. 65/99. In the FIR it has been unequivocally mentioned that her husband was missing. 2. It is putforth in the petition that several representations have been made to various authorities but the same have fallen on deaf ears. It is urged that she is in a precarious state and her penury has compelled her to lead a life which may not be worth living. The search in pursuance of the FIR by the investigating agency has gone in vain as if Mr. Ashok Gajanan, the husband of the petitioner, has melted into thin air. It is setforth in the petition that communications have been sent to the Department but no action has been taken. It is worthwhile to state that the petitioner had approached this Court in W.P. No 1552/2000 and this Court had directed the investigating agency to locate the husband of the petitioner. As it appears despite rigorous and roving search he has not been found. With this factual backdrop a prayed has been made to command the State to produce the said Ashok Kumar Gajanan by issuing a writ of 'habeas corpus' and further to command the respondent No. 5 to render financial assistance to the petitioner so that she can lead a life with dignity which is the projection of the Constitution, the sublime organic law of the land. 3. A return has been filed by the State functionaries indicating that all the efforts and attempts have been made to locate the husband of the petitioner and the search is still on, but they are not in a position to get the clues about his existence. 4. 3. A return has been filed by the State functionaries indicating that all the efforts and attempts have been made to locate the husband of the petitioner and the search is still on, but they are not in a position to get the clues about his existence. 4. A return has been filed by the respondent No.5, the General Manager BSNL, Jabalpur, contending, inter alia that the petitioner had made representation for grant of compassionate appointment. As two years had not been completed from the date of lodging of the FIR, the same could not be attended. A reference has been made to Annexures R-5/4 to R-5/5 which exposit the guidelines. 5. Mr. K.N. Fakharuddin, learned counsel appearing for the petitioner has submitted that though the petitioner had made a prayer for grant of financial assistances she may be permitted to pray before this Court to command the respondent No.5 to grant compassionate appointment to the petitioner as she has already made a representation in that regard. It is urged by him that if the respondent No. 5 would adopt, hypertechnical approach in a case of this nature, the petitioner's two small children would suffer immensely and her agony would have no bounds and the penury shall compel her to take the children to streets. 6. Mr. O.P. Namdeo, learned counsel appearing for the respondent No.5 though initially feebly objected that there is no prayer for grant of compassionate appointment eventually abandoned the same keeping in view the orders passed by this Court from time to time to which we shall refer to at a later stage. Mr. Namdeo has also submitted that the case of the petitioner is under consideration for the purpose of compassionate appointment and the Department has the fullest sympathy for her. 7. Before we advert to the aforesaid submissions, we may note that when the matter was listed on 24.7.2002 the aspect regarding the compassionate appointment was dealt with and this Court eventually passed the following order: "The matter had been postponed from time to time to enable respondent No.5 to consider the case of petitioner for appointment on compassionate ground after missing of her husband. On 9.1.2002, Shri Namdeo submitted that steps for considering the case of petitioner for compassionate appointment have already been taken but the matter was stuck up due to absence of report/communication from Police Department that whereabouts of Ashok Aakulwaar were not known. Accordingly, Police was directed to do the needful by order dated 26.2.2002. On 14.3.2002, Shri Namdeo submitted that certificate from Suptd. of Police, Jabalpur, as per direction of the Court dated 9.1.2002 and 26.2.2002 had beer received. Accordingly, respondent No. 6 was directed to process the case of compassionate appointment and make statement to the Court on April 17, 2002. On April 17, 2002, Shri Namdee submitted that case of petitioner had already been referred to Corporate Office of BSNL, New Delhi as special case and it was expected that needful would be done within a month; and as such, extension was sought by one month which was granted. Again or 16.5.2002, Shri Namdeo prayed for and was granted six weeks' further time in the matter. Today, Shri Namdeo, learned counsel for respondent No. 5 has no information as to the stage of the case. Therefore, he is not in a position to say by which time matter would be decided by respondent No.5. Consequently, respondent No. 5 is directed to pass orders within a period of two months, as prayed by Shri Namdeo learned counsel for the respondent No.5. 8. Again it was listed on 26.2.2003 where Mr. O.P. Namdeo, learned counsel sought for extension of time to enable him to discuss the matter with the Corporation keeping in view that the case of the petitioner is of exceptional nature as she requested to be appointed immediately. This Court adverted to the same or 25.3.2003 and after referring to the earlier orders and extended time upto 30.4.2003 for giving benefit of appointment to the petitioner. As the order had not been complied with an application forming the subject-matter of IA No. 1096/2002 had been filed for extension of time. 9. This Court adverted to the same or 25.3.2003 and after referring to the earlier orders and extended time upto 30.4.2003 for giving benefit of appointment to the petitioner. As the order had not been complied with an application forming the subject-matter of IA No. 1096/2002 had been filed for extension of time. 9. If the pleadings are appreciated and the orders passed by this Court from time to time are taken into consideration three issues, namely, (i) whether the respondent No.5 should render financial assistance to the petitioner; (ii) whether the respondent No. 5 should extend the benefit of compassionate appointment commensurate with her educational qualification by treating this case an exceptional one; and (iii) whether the State authorities should keep the investigation alive to locate the husband of the petitioner, emerge. 10. As far as the first issue is concerned Mr. Fakharuddin in his wisdom has thought it appropriate to abandon and rightly so. We may state that Mr. Namdeo has opposed to grant financial assistance. In any view of the matter as the prayer has been abandoned by the learned counsel for the petitioner, we need not revert to the said spectrum. 11. We shall take up the third issue that may be disposed of with a short direction. Mr. Hemant Shrivastava, learned Government Advocate for the State submitted that police authorities have kept the search alive and are hopeful that they would be able to find out the details of the husband of the petitioner. We appreciate the aforesaid submission of the learned counsel for the State. 12. Things do happen in life and man lives with hope and, therefore, we are not disposed to close the shutters as far as hope is concerned. Hence, in our opinion, the State functionaries shall keep the search alive and intimate the petitioner about the results of their efforts from time to time. We are not fixing any time or duration for such intimation. However, we hope and trust the learned Government Advocate would apprise the authorities so that they would keep the petitioner, a hapless woman, to be made aware of her husband with the passage of time so that the catastrophe that had fallen on her in the winter of 1999 would not become the winter of her discontent and may slowly melt into advent of spring. 13. As far as second facet is concerned Mr. 13. As far as second facet is concerned Mr. O.P. Namdeo, learned counsel appearing for the BSNL submitted that the Corporation is absolutely sympathetic towards the petitioner as her husband missed while he was working in the Corporation. It is however, urged by him that the case of the petitioner was not considered earlier as two years had not expired. It is not disputed that the petitioner is entitled to compassionate appointment being the dependent spouse. It is not disputed before us that two years have elapsed from the date of lodging of missing report and certificate to that effect has been given by the Police Department. 14. We have been apprised by Mr. O.P. Namdeo that the matter has been referred to the Head Office of the respondent No. 5 and they are waiting for the decision. Ordinarily we would have directed that the case of the petitioner should be considered. But certain facts weigh with us. It is not in dispute that the husband of the petitioner was working in BSNL and he has been missing for more than two years. The guidelines do cover the case of the petitioner, she being the dependant wife of the missing person. It is not disputed that she has two small children. In such a state of affair, we are of the considered opinion the stand of the respondent No.5 should be benevolent and efforts should be made to save the family. When the scheme is there and the conditions are satisfied formalities are not to govern in toto. We are conscious, formality is the sine qua non of authenticity but when formalities earn the status of hyertechnicality they lose their vitality, the elan vital. The petitioner before us, we are convinced, has suffered immensely inasmuch as at the age of 28 years she has lost the company of her husband as he is missing for more than 2-1/2 years. Keeping in view the totality of circumstances, we command the respondent No.5 to offer appointment to the petitioner commensurate with her qualification by end of July, 2003. We may hasten to add that the respondent No. 5 would not pray for extension of time in this regard for the simonpure reason the agony of the suffering wife would get accelerated and her sorrow would be accentuated. We may hasten to add that the respondent No. 5 would not pray for extension of time in this regard for the simonpure reason the agony of the suffering wife would get accelerated and her sorrow would be accentuated. We hope and trust that the respondent No. 5 shall keep himself alive to the fact situation and do the needful, as directed. 15. The writ petition is disposed of accordingly without any order as to costs.