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2008 DIGILAW 116 (JK)

Shashi Bala Sharma v. State

2008-04-09

NIRMAL SINGH

body2008
1. The husband of the petitioner was serving in Health Department as Medical Officer. He died in road accident on 19th December 1987 while he was on official tour. Petitioner applied for compassionate appointment against the post of Health Educator being eligible. The respondent No: 2 examined her case and found that she is overage by 2 years 5 months and 15 days as on 1.1.1988 as per her date of birth viz 16.7.1953. The respondent No. 2 recommended the case of the petitioner to the respondent No. 1 for relaxing her upper age bar by 2 years 5 months and 15 days as also appointing her on compassionate ground against the post of Health Educator in the pay scale of Rs 1150-2050, which was lying vacant in the district Udhampur. State Govt. vide Govt. Order No: 61 -HME of 1991 dated14.1.1991, accorded sanction to the relaxation of upper bar in her favour. The respondent No: 1, vide Govt. Order No: 62-HME of 1991 dated 1.1.1991 also accorded sanction to the adhoc appointment of the petitioner on compassionate ground as Health Educator in the pay scale of Rs 1150-2050. Thereafter, the respondent No: 2 vide Order No: ES-5/NG/90/282-85 dated 21.1.1991 appointed the petitioner as Health Educator in the pay scale of Rs 1150-2050 in the Health Department on adhoc basis. 2. Grievance of the petitioner is that since initial appointment of the petitioner was made on compassionate ground and for all practical purposes the initial appointment of the petitioner on compassionate ground is permanent not temporary or adhoc. It is submitted that the respondents have issued communication NO: BMO/CHC/K-89-93 dated 17.5.2004, by virtue of which an effort has been made to bring an end to the services of the petitioner as she has been directed to furnish an agreement as per Form-A pursuant to Govt. Order No: 237-GAD of 2004 dated 20.02.2004 which is applicable to adhoc appointees. Petitioner challenges the said order on the ground that she was appointed on compassionate ground and Govt. Order No: 237-GAD of 2004 dated 20.02.2004 is not applicable to her case. It is submitted that the appointment of the petitioner on compassionate ground be treated as regular appointment with effect from 14.01.1991. 3. On notice, the respondents have filed CMP No: 631/2008 and prayed the aforesaid CMP be treated as objections on behalf of the respondents. Prayer allowed. Order No: 237-GAD of 2004 dated 20.02.2004 is not applicable to her case. It is submitted that the appointment of the petitioner on compassionate ground be treated as regular appointment with effect from 14.01.1991. 3. On notice, the respondents have filed CMP No: 631/2008 and prayed the aforesaid CMP be treated as objections on behalf of the respondents. Prayer allowed. In the objections, the respondents have taken a stand that the appointment of the petitioner is on adhoc basis. The adhoc appointee has a right to be regularized under the rules governing the field. 4. I have heard learned counsel or the parties and perused the record. 5. Short point involved in this petition is whether the compassionate appointment under SRO 122 of 1983, repealed vide subsequent SRO 43 of 1994, is permanent, temporary or adhoc. The procedure to appoint a person on compassionate ground has been laid down in Rules 3, 4 and 5 of SRO 43 of 1994 which reads as under: 3. "Appointment" under these rules: - (I) Not withstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of a non gazetted service having qualification above Matriculation or to a class IV post if the candidate has read upto Matric. Provided that the applicant is eligible and qualified or acquires eligibility and qualification within a period of six months from the death of the deceased person specified in rule 2. (2) Nothing in sub rule (1) shall derogate from the powers of the Government in General Administration Department to appoint at its discretion a candidate to a higher post ID the non-gazetted service if he/she is a family member of a deceased Government employee or a civilian killed in the militancy related actions. 4. (2) Nothing in sub rule (1) shall derogate from the powers of the Government in General Administration Department to appoint at its discretion a candidate to a higher post ID the non-gazetted service if he/she is a family member of a deceased Government employee or a civilian killed in the militancy related actions. 4. Appointment in case of death in harness:- Appointment under these rules in respect of a family member of a Government employee who dies in harness due to a cause other than militancy related action, shall be made by the Head of the Department concerned provided that:- i) where no post is available in the office or subordinate offices of the Head of the Department, the proposal for appointment shall be submitted to the Administrative Department concerned and where there is no post available in the Administrative Department concerned also the case shall be referred to General Administration Department for appointment of the candidate in any other Department; or ii) Where any such appointment is to be made in relaxation of rules, such cases shall be submitted to the General Administration Department in co-ordination. 5. Appointment in other cases:- (I) Appointment under these rules in respect of a member of the family of a Government employee or a civilian who has died as result of militancy related action or in respect of a family member of the officer of Armed Force or para military force shall be made by the General Administration Department in accordance with the procedure hereinafter prescribed. (2) A family member of a Government employee or a civilian who dies as a result of militancy related action may apply for appointment against any suitable vacancy to the Deputy Commissioner of the District in which he or she resides. The Deputy Commissioner after making such enquiry as may be necessary may forward the case to the Government in the General Administration Department through the Home Department through the Commanding Officer of the Unit in which the deceased member of the armed force or para military force was last serving. The Home Department after determining the eligibility may forward the case to the Government in the General Administration Department. 6. Perusal of the aforesaid SROs makes it clear that there is no provision in the said SROs to appoint a person on compassionate ground on daily wage, temporary or adhoc basis. The Home Department after determining the eligibility may forward the case to the Government in the General Administration Department. 6. Perusal of the aforesaid SROs makes it clear that there is no provision in the said SROs to appoint a person on compassionate ground on daily wage, temporary or adhoc basis. Once the authorities have taken a decision to appoint a person on compassionate ground under the aforesaid SROs then that appointment is to be made on permanent basis. If appointment on compassionate ground is made on temporary, adhoc or daily wage basis then the purpose of aforesaid SROs will be frustrated. Purpose of such appointment under-these SROs is to give immediate relief to the bereaved family whose bread earner died in harness. 7. In case reported as Ravi Karan Singh Vs State of UP 2000(1) SCT 437, Honble Divison Bench of Allahabad High Court has held as under: "an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner." 8. In the instant case, the petitioner was given appointment on compassionate ground. Before giving such appointment, bar of her upper age was relaxed by the respondents. 9. In view of the above discussion, this petition is allowed. The respondents are directed to treat the initial appointment of the petitioner on compassionate ground on permanent basis with effect from the date 21.1.1991. Petitioner will also be entitled to all consequential benefits including seniority, promotion and monetary. 10. Let consideration be accorded to the case of the petitioner within a period of three months from the date of receipt of copy of this order. Disposed of accordingly.