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2015 DIGILAW 359 (JK)

Reehana Ashai v. State

2015-07-27

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Muzaffar Hussain Attar, J.:- 1. Petitioner’s father died on 28-02-1993 as a result of a militancy related action. A report in this behalf has been lodged with police station, Saddar, Srinagar on 20-02-1993. 2. The petitioner - daughter of the deceased Government employee, made application for being appointed on compassionate grounds. Her application was considered under rules notified vide SRO 43 of 1994 (for short Rules of 1994). The Deputy Commissioner, Srinagar, in a communication dated 02-07-1998 addressed to Commissioner Secretary To Government of J. & K., Education Department, informed him that the petitioner could not be appointed on compassionate grounds because the income of the family of the deceased exceeded Rs. 11,500/-. Request was made for appointment of the petitioner in relaxation to the Rules of 1994. 3. Vide Government order No. 225 - GAD of 2002 dated 04-02-2002, sanction was accorded to the appointment of petitioner as teacher in School Education Department against any available vacancy in District Srinagar on ad hoc basis for a period of 89 days. Ever since, the petitioner is continuing in service on ad hoc basis. 4. The petitioner has filed this writ petition with the prayer that her appointment as teacher be deemed to have been made on regular basis in terms of Rules of 1994. 5. Respondent No. 1 has filed objections in which it is stated that the case of the petitioner was not covered by Rules of 1994. However, in order to compensate the family in lieu of death of the deceased, the petitioner was appointed as teacher on ad hoc basis initially for a period of 89 days, which stands extended. It is further stated in the objections that the object of compassionate appointment under the Rules of 1994 is to provide immediate succor to the family members of the deceased, who have lost their bread earner so that they can withstand the crises to which they are subjected to. It is stated that such is not the case in the case on hand as the mother of the petitioner is a doctor and is in a position to sustain the family. It is also stated in the objections that claim of the petitioner for her regularization/permanent absorption in the service will be considered in accordance with the provisions of Jammu & Kashmir Civil Services (Special Provisions Act) 2010. 6. Mr. It is also stated in the objections that claim of the petitioner for her regularization/permanent absorption in the service will be considered in accordance with the provisions of Jammu & Kashmir Civil Services (Special Provisions Act) 2010. 6. Mr. Haqani, learned counsel appearing for the petitioner, while referring to rule 2(ii) of the Rules of 1994, submitted that the case of the petitioner is covered by the said rule, which, being not hedged with the condition of income of the family exceeding a particular amount, the claim of the petitioner for her appointment on compassionate grounds has been wrongly denied to her. 7. The Rule Making Authority has created 04 clauses in rule 2 of the Rules of 1994 for providing appointment on compassionate grounds. Clause (i) relates to the case of a person, who seeks appointment on compassionate grounds because of death of his parent who die in harness. Clause (ii) prescribes that a Government employee, who dies as a result of militancy related action and is not involved in militancy related activities, compassionate appointment will be provided to one of his/her family members, which is defined in the rule itself. Clause (iii) relates to the case of a civilian, who dies as a result of militancy related action and was not involved in militancy related activities and the total income of the family, from all sources, does not exceed Rs. 5000/- per month as assessed by the Revenue Officer not below the rank of an Assistant Commissioner. Clause (iv) relates to the member of armed forces. 8. Case of the petitioner is, thus covered by rule 2(ii) of the Rules of 1994, which is taken note of: “A Government employee who dies as a result of militancy related action or due to enemy action on the line of Actual Control/International border within the State of Jammu and Kashmir and is not involved in militancy related activities.” 9. For providing appointment on compassionate grounds to the class of people mentioned in rule 2(ii) supra, the concession is not hedged by the condition of income of the family, which may exceed a particular amount when same is the position in clause (iii) of rule 2 of the Rules of 1994. The Rule Making Authority has, itself, made distinction in clauses i, ii & iii of rule 2 of the Rules of 1994. 10. The Rule Making Authority has, itself, made distinction in clauses i, ii & iii of rule 2 of the Rules of 1994. 10. True it is that one of the solemn purpose underlying the Rules of 1994 is to provide succor to the family members, whose bread earner dies because of any of the contingency mentioned in rule 2 of Rules of 1994. 11. Providing employment in terms of Rules of 1994 is in deviation to normal rule of appointing people in Government service. A public post is the public property and appointments to Government service/public service are to be made in accordance with the mandate contained under articles 14 & 16 of the Constitution of India. For filling up of a post in Government service, all eligible candidates are to be considered and appointment is to be made on the basis of merit secured by a competing candidate in such a selection process. 12. The deviation for providing employment, in terms of Compassionate Appointment Rules, has been accepted by the Courts as the purpose sought to be accomplished is of higher human value. 13. It is the duty of the State and its authorities in a democratic system like ours to protect life, liberty and property of its citizens. This duty is not only inherent in a democratic Government but is enjoined upon it by article 21 of the Constitution of India as well. When the State and its authorities, for whatsoever reason, fail to protect the life, liberty and property of its citizens, it becomes its duty to compensate the victim of such unlawful act. When a member of a family suffers terrestrial exit, which is not natural, his/her family cannot be compensated for such a loss. No amount of money or any other kind of succor can compensate the family for the loss it has suffered. In such circumstances, the Government is making an effort to compensate the family and one such mode has been adopted to provide employment to one of the family member of the deceased Government employee. 14. The respondents have applied wrong yardstick to the case of the petitioner in denying appointment to her in terms of the Rules of 1994. 15. In such circumstances, the Government is making an effort to compensate the family and one such mode has been adopted to provide employment to one of the family member of the deceased Government employee. 14. The respondents have applied wrong yardstick to the case of the petitioner in denying appointment to her in terms of the Rules of 1994. 15. The compensatory provision contained in the Rules of 1994 to be given its true meaning can be done only by holding that when a family satisfies the eventuality, which is enumerated in rule 2 of the Rules of 1994, then the Government and its authorities become duty bound to follow their own rules. 16. In the facts of this case, as already stated, the appointment on compassionate grounds has been wrongly denied to the petitioner. 17. In the aforementioned backdrop, this writ petition along with connected IAs is disposed of in the following manner: “It is declared that the petitioner is entitled for being appointed on compassionate grounds from the date she has been appointed as teacher on ad hoc basis, viz. 04-02-2002. The respondents to issue necessary orders within four weeks for appointment of the petitioner on compassionate grounds as General Line Teacher by giving effect to such appointment from 04-02-2002. In case respondents fail to issue necessary orders then it shall be deemed that the petitioner stands appointed on compassionate grounds as General Line Teacher in District Cadre Srinagar from 04-02-2002 and shall be given all the service benefits in accordance with the rules.” 18. Disposed of along with CMPs.