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2013 DIGILAW 603 (JK)

Gulshan Akhter v. State of J&K

2013-10-07

ALI MOHAMMAD MAGREY

body2013
JUDGMENT : Ali Mohd. Magrey, J. 1. The claim put forth in this petition seeking a direction for compassionate appointment of the petitioner exudes a chequered history. The petitioner is the widow of deceased Government employee, namely, Ghulam Mohammad Bhat, who was working as a Mate in Irrigation Department, Pulwama, and died in harness on 16.12.2004. The deceased left behind his widow, petitioner herein; three sons and three daughters. Two of the sons are stated to be government employees living separately. Though not stated in the petition, petitioner is the second issueless widow of the deceased Government employee. The three daughters had been married prior to death of the petitioners husband. The third son of the deceased, namely, Riyaz Ahmad Bhat, applied for appointment on compassionate grounds in terms of provisions of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994 promulgated vide SRO 43 of 1994. The Assistant Commissioner (Rev.), Pulwama, issued the dependence certificate, showing the petitioner as dependent No. 1. Meanwhile, Riyaz Ahmad Bhat filed writ petition, SWP No. 969/2005, seeking a direction to the respondents to appoint him on compassionate grounds. The petitioner herein sought, and was arraigned, as respondent in the said writ petition to contest the claim of said Riyaz Ahmad Bhat. The writ petition was disposed of vide order dated 30.03.2006 with direction to the Deputy Commissioner for considering the rival claims of the parties and for taking final decision in the matter After hearing the contesting parties, so to say, the mother-son duo. The Deputy Commissioner, after considering the case and hearing them, in terms of letter dated 21.12.2006 addressed to the Chief Engineer, Irrigation and Flood Control Department, Kashmir, recommended that widow of the deceased has priority over and above other family members for appointment against the post left by the deceased. The case of the petitioner was, thereafter, processed and recommended at various hierarchal stages of the Department. Respondent No. 3, the Chief Engineer, ultimately, recommended the case of the petitioner to the Principal Secretary to Government, PHE/I & FC Department. This is borne out by communication No. GE-16-SF/12680, dated 04.01.2008 addressed by respondent No. 3 to respondent No. 1 furnishing the particulars sought from him by respondent No. 1. 2. Meanwhile, Riyaz Ahmad Bhat, son of the deceased, appears to have filed another writ petition, SWP No. 225/2007. This is borne out by communication No. GE-16-SF/12680, dated 04.01.2008 addressed by respondent No. 3 to respondent No. 1 furnishing the particulars sought from him by respondent No. 1. 2. Meanwhile, Riyaz Ahmad Bhat, son of the deceased, appears to have filed another writ petition, SWP No. 225/2007. As per the petitioner, this was aimed at stalling the issuance of formal orders of her appointment. During the pendency of this petition, respondent No. 1 issued communication dated 19.03.2008, which is impugned herein, intimating to respondent No. 3 that the matter had been taken up with General Administration Department. The said communication quoted the decision of the General Administration Department, which is reproduced hereunder: "The departmental proposal being not covered under SRO 43, relaxation policy has not been agreed to. However, the department is advised to consider other family member, if otherwise eligible for appointment under SRO 43/1994". It may be relevant to mention here that the writ petition, SWP No. 225/2007, filed by Riyaz Ahmad, was finally disposed of on 01.04.2010 directing the official respondents to consider claim of the eligible family members of the deceased Gh. Mohammad Bhat, including the petitioner therein for being appointed on compassionate grounds in accordance with the mandate of rules notified vide SRO 43 of 1994. The learned Writ Court in its aforesaid order further provided that the directions issued will not prejudice the rights of the petitioner herein to stake her claim to the post in accordance with rules which may include her right to challenge the communication dated 19.03.2008. 3. Respondents have filed their replies. Whereas, the General Administration Department, respondent No. 2, has filed its own reply, the other respondents have filed a joint reply. As the impugned decision has basically emanated from the General Administration Department, it would be appropriate to first refer to its stand taken in the reply. 4. 3. Respondents have filed their replies. Whereas, the General Administration Department, respondent No. 2, has filed its own reply, the other respondents have filed a joint reply. As the impugned decision has basically emanated from the General Administration Department, it would be appropriate to first refer to its stand taken in the reply. 4. It is stated by respondent No. 2 in its reply that appointment under SRO 43, cannot be claimed as a matter of right and after 08 years of death; that the petitioner has applied for compassionate appointment under SRO 43, but because of the family dispute the matter appears not to have been taken up in the Irrigation & Flood Control Department; that the concerned Department submitted the case of the petitioner to the General Administration Department for relaxation of upper age bar; that the matter was considered and it was found that the case was not covered under relaxation policy. Thereafter the concerned Department again recommended the case of the petitioner, but the same was returned on 12.05.2008. It is stated that as per the policy approved by Hon'ble Chief Minister, 05 years' relaxation of upper age limit beyond 37 years is to be given in respect of widows. Since the petitioner at the time of death of her husband was of the age of 45 years, 09 months and 07 days, her case was not covered under the relaxation policy. 5. The reply filed on behalf of the rest of the respondents is bald, evasive and sketchy. The only substantial stand taken in the preliminary objections is that petition is liable to be dismissed as the compassionate appointment is being sought after gap of about six years and that sanctity of such appointment is lost by the passage of time. These respondents seem to be oblivious of the fact that they had recommended the case of the petitioner. 6. I have heard learned counsel for the parties and considered the matter. 7. On 07.10.2013, when the case was heard and judgment was reserved, this Court directed the learned counsel for the respondents to submit the records from the office of the Commissioner/Secretary to Government, Irrigation and Flood Control Department and also from the office of Chief Engineer. Records in the shape of File No. 87 captioned "SRO case of Ms. Gulshan Bano" alongwith eleven leaves of loose documents have been produced. 8. Mr. Records in the shape of File No. 87 captioned "SRO case of Ms. Gulshan Bano" alongwith eleven leaves of loose documents have been produced. 8. Mr. J.A. Kawoosa, learned Senior AAG, has cited and relied upon two judgments of the Supreme Court: one delivered in case State of Jammu and Kashmir v. Sajad Ahmed Mir, (2006) 5 SCC 766 , and the other in Local Administration Department v. M. Selvanayagam, AIR 2011 SC 1880 . In the former case the point in issue was delay and laches committed by the petitioner therein to apply for compassionate appointment. In that case the application for compassionate appointment was made after 4 1/2 years of the death of the deceased employee. In that context, the claim of the petitioner therein was disallowed. In the latter case, again, the application for compassionate appointment had been made 7 1/2 years after the death of the deceased employee. The facts of these cases, therefore, are obviously distinguishable. In the instant case, it is not the case of the respondents that there was any delay to make application for compassionate appointment. 9. However, the submission made on behalf of the respondents that the petitioner cannot be appointed on compassionate grounds after nine years of the death of the deceased employee is not without merit. The basic concept of providing employment to a dependent family member of a deceased government employee is objected at enabling the family of such deceased employee to tide over the sudden financial crisis that occur on account of death of the bread earner. This is an exception carved out to the general rule mandated by Articles 14 and 16 of the Constitution. If the family survives the crisis, the rules allowing the exception would not be attracted. 10. In the instant case the petitioner has not only survived the crisis, but has been able to sustain herself for all these nine years. It is not that petitioner was left in penury. The records produced reveal that in terms of orders dated 23.03.2006, 22.04.2006, 06.05.2006 read with order dated 14.03.2008 passed by the learned Principal District Judge, Pulwama, the petitioner has been held entitled to and paid 1/4th share of the securities/monies left behind by the deceased employee, which included the G.P. Fund, leave salary and gratuity of the deceased. The records produced reveal that in terms of orders dated 23.03.2006, 22.04.2006, 06.05.2006 read with order dated 14.03.2008 passed by the learned Principal District Judge, Pulwama, the petitioner has been held entitled to and paid 1/4th share of the securities/monies left behind by the deceased employee, which included the G.P. Fund, leave salary and gratuity of the deceased. Records further reveal that the petitioner had also filed a writ petition, SWP No. 105/2006, before this Court wherein she had sought the following prayers: (a) Mandamus commanding thereby respondents to release the pensionary benefits in favour of the petitioner in the form of full pay upto the period of seven (7) years along with scheduled interest. (b) Mandamus commanding the respondents to release the gratuity and other consequential benefits including the leave salary in favour of the petitioner forthwith so as to enable her to sustain her life. (c) Mandamus commanding thereby respondents to settle the case of the petitioner within a shortest span of time by releasing the pensionary benefits in favour of the petitioner alongwith other consequential monetary benefits so as to ensure the sustenance in these hard days." (highlighting supplied) The aforesaid writ petition was disposed of by a Coordinate Bench of this Court in terms of consent order dated 01.04.2010 whereby the official respondents in that petition were directed to implement pension payment orders passed in favour of the petitioner and pay to her whatever amount of pension has become due. It was further provided that in case for any reason the pension payment order issued in favour of the petitioner had been withdrawn then the respondents will process the case for payment of pension in favour of the eligible family member in terms of rules governing the field. Perusal of the aforesaid order dated 01.04.2010 further reveals that it had been admitted at the Bar by learned counsel for the petitioner that pension had been sanctioned in her favour but, however, only to the extent of 50%. That being the position, the petitioner has been getting sustenance as claimed by her in her aforesaid writ petition. 11. Apart from the above, it is the specific case of the respondents that the petitioner's case is not covered by the provisions of SRO 43 of 1994. That being the position, the petitioner has been getting sustenance as claimed by her in her aforesaid writ petition. 11. Apart from the above, it is the specific case of the respondents that the petitioner's case is not covered by the provisions of SRO 43 of 1994. It is stated that as per policy approved by the Hon'ble Chief Minister, 05 years' relaxation of upper age limit beyond 37 years is to be given in respect of widows. Admittedly, the petitioner's date of birth is 09.03.1959. Her age at the time of death of her husband, viz. 16.12.2004, was more than 45 years. As on this date, the petitioner is of more than 541/2 years of age. It may be mentioned here that Rule 7 of the Jammu and Kashmir (Compassionate Appointment) Rules 1994 provides that the Government may relax the lower or upper age limits in deserving cases. The maximum age limit for entry into government service is 37 years. The aforesaid Rule 7 of the Rules only gives discretion to the Government in the General Administration Department to relax age bar. If the Government has taken a policy decision to grant such relaxation in respect of widows upto 5 years, this Court cannot in its review jurisdiction require the Government to go beyond its policy decision. Even in absence of such policy decision, this Court would be loath in issuing such a direction, muchless requiring the Government to relax the upper age bar of more than 17 years. The retirement age in the State Government services being 58 years, normally, a Government servant at this stage of the age should be gearing up for retirement. Such being the factual position, the claim of the petitioner sounds, somewhat, preposterous. Since on the count of age factor, petitioner is not eligible, it is rightly said that her case was not covered under the Rules. This is so because Rule 3 of the aforesaid Rules permits such appointment only if the applicant seeking such appointment is otherwise eligible and qualified. 12. There is yet another very vital piece of material sprouting from the records produced by the learned counsel for the respondents. On 16.03.2012, the General Administration Department, Cabinet Section, Civil Secretariat has under the signatures of Under Secretary to Government, General Administration Department, addressed OM No. GDC/469/CM/2011, to the Secretary to Government, School Education Department. 12. There is yet another very vital piece of material sprouting from the records produced by the learned counsel for the respondents. On 16.03.2012, the General Administration Department, Cabinet Section, Civil Secretariat has under the signatures of Under Secretary to Government, General Administration Department, addressed OM No. GDC/469/CM/2011, to the Secretary to Government, School Education Department. Copies of this Office Memorandum have been endorsed for information and necessary action to all Administrative Secretaries. It goes to the root of whole matter and reads as under: "Sub:- Compassionate appointment cases under SRO 43/1994. The undersigned is directed to refer the Commissioner/Secretary to Government, School Education Department to his OM No. Edu-II/308/2010, dated 01.03.2012 followed by reminder dated 30.11.2011 on the above captioned subject and to say that in case of death in harness, the dependents get family pension also. If any member of the family is already in Government service, the compassionate appointment of another member is not justified." Copy of the aforesaid OM has also been sent to the Chief Engineer Irrigation Department, Kashmir, by Under Secretary to Government, PHE/I & FC Department under the cover of letter No. PW/PHE/NGJ/92/2012, dated 07.06.2012. Though this OM has not been cited and relied upon by the respondents in their respective replies for reasons best known to them, yet having called for the record and the said documents having been submitted along with the record, this Court cannot shut or turn its eyes from the said documents. In the instant case, it is the admitted position that, apart from the fact that petitioner is drawing pension, two of the three sons of the deceased employee are stated to be government servants. In any case, with or without these documents, the impugned order does not violate any of the rights of the petitioner. 13. In face of the aforesaid facts and circumstances, I do not find any merit in this petition. I am conscious that there are certain directions passed by the Coordinate Benches of this Court on the earlier writ petitions filed by either the petitioner or her deceased husband's son, Riyaz Ahmad. This judgment is rendered in the peculiar facts and circumstances those have come in the pleadings of the parties and have surfaced from the original record called for from the respondents. Therefore, this judgment is not to upset those judgments and/or orders. This judgment is rendered in the peculiar facts and circumstances those have come in the pleadings of the parties and have surfaced from the original record called for from the respondents. Therefore, this judgment is not to upset those judgments and/or orders. In any case, the matter needs to be given a quietus now. The writ petition fails. It is, accordingly, dismissed together with connected CMPs. Interim direction, if any subsisting, shall stand vacated. No order as to costs. Record produced is returned to learned counsel for respondents in the open court.