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2016 DIGILAW 415 (JK)

Jamila Akther v. State of J&K

2016-08-08

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed praying for issuance of a writ of mandamus directing the respondents to issue order for regularization/appointment of the deceased husband of the petitioner namely Gh. Mohi-ud-din retrospectively from June 2000 with all consequential benefits and direct the respondents to appoint the petitioner on IVth post which is available in PHE Mechanical Division Awantipora by treating the husband of petitioner as a regular employee and accordingly settle the case of petitioner in terms of SRO 43 of Compassionate Appointment Rules 1994. It is a case of the petitioner that her husband was working as daily-rated worker in the respondent-department who was appointed on 22.06.1993 and completed seven years of service on 22.06.2000 and therefore as on 22.06.2000 he was entitled to regular appointment against any class IVth post in the respondent Division at Awantipora. In spite of the availability of vacancy, respondents failed to regularize the services of petitioner's husband on Class IVth post. 2. In the reply filed it is stated that in terms of SRO 64 of 1994, petitioner was eligible for being brought on regular establishment against Class IVth Post as he was working as daily wager w.e.f. 22.06.1993 and had completed seven years of service obviously on 22.06.2000. However, as per policy of the Government, his case was to be considered for regularization in the subsequent financial year w.e.f. 01.04.2001, but unfortunately, petitioner's husband died on 22.10.2000, therefore, the department could not process his case for regularization from 01.04.2001 and as such, as the service of the petitioner was not regularized, she is not entitled for compassionate appointment. 3. The point arises for consideration is as to whether the petitioner's husband on having completed seven years of service on 22.06.2000, is entitled to get regularization in terms of said SRO. 4. As per Rule 4 of the said SRO, a person who completes 7 years of continuous service as daily rated worker is entitled to regularization provided he possess prescribed academic qualification and is within the minimum and maximum age limit on initial date of appointment as prescribed for appointment and his work is satisfactory. None of the said reason is mentioned to reject the regularization claim of the petitioner's husband. The only reason stated is that petitioner's claim was to be considered for regularization in the subsequent financial year w.e.f. 01.04.2001. None of the said reason is mentioned to reject the regularization claim of the petitioner's husband. The only reason stated is that petitioner's claim was to be considered for regularization in the subsequent financial year w.e.f. 01.04.2001. As the said reason being not stated in Rule 4, the stand of the respondents for rejecting the claim of the petitioner's husband cannot be accepted. 5. The same issue has already been decided by this Court in SWP No. 1057/2012 in case 2013 (3) JKJ 162 [HC] Sunita Rani v. State of J&K reported as 2014 SLJ 1037, decided on 06.06.2013. In the said judgment, in paragraph No. 4 it is held thus:- 4. Reference is made in this regard to a judgment rendered by the Hon'ble Division Bench of this Court in case 2003 (4) JKJ 93 [HC] Ashok Kumar v. State of J&K & Ors. as reported in 2003 SLJ 475. Paragraph 30 of this judgment is relevant and reproduced as under :- "30. There is yet another category of persons who were legal heirs of those who were entitled to regularization but were not so regularized. The legal heirs of such employees can seek compassionate appointment. Compassionate appointment sometimes is not allowed on the plea that concerned employee is not governed by SRO 43/94. In this regard, it would be apt to notice that SRO 43/94 makes use of the word "Government Servant" and therefore, even a casual or ad hoc employee would fall under this category for the purpose of compassionate appointment. Such a person seeking compassionate appointment where the deceased had rendered 7 years of service and was entitled to the benefit of regularization, then the legal heirs of such a person would be entitled to claim compassionate appointment on the assumption that the deceased would have been regularized. A formal order would have to be passed in favour of an employee in such a case. Such a situation has been considered in the case of Saroj v. State of Haryana, 1997 (1) SCT 229. The widow of the deceased ad hoc employee was seeking appointment on compassionate grounds in the above case. This was denied on the ground that compassionate appointment can be granted only in case of death of an employee who is working on regular basis. This plea was rejected. The widow of the deceased ad hoc employee was seeking appointment on compassionate grounds in the above case. This was denied on the ground that compassionate appointment can be granted only in case of death of an employee who is working on regular basis. This plea was rejected. The fact that deceased was entitled to seek regularization was taken note of and the widow was held entitled to regularization. Similar view was taken by this Court in the case of Sureksha Rani v. State of J&K, 1999 KLJ 24 . This aspect of the matter would accordingly be taken note of and even in the case of those employees who were entitled to regularization but were not regularized, the claims of their legal heirs would be considered as and when such application is preferred by them seeking compassionate appointment." 6. It is also held in the said case that a person who has completed 7 years of service by the time of his death had a right of seeking regularization in terms of Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act 2010. 7. Applying the said judgment to the fact of this case, the petitioner is entitled to get the service of her husband regularized from 22.06.2000 and get the benefits arising out of the said regularization as she is the legal heir. As the petitioner's husband is to be regularized from 22.06.2000 and SRO 43, contemplates giving appointment to one of a legal heir on compassionate grounds, the petitioner's claim for compassionate appointment is bound to be considered. 8. The claim of the petitioner shall be considered and orders to that effect shall be passed by 2nd respondent within a period of six weeks from the date of receipt of copy of this order. 9. It is made clear that if the petitioner is already employed elsewhere, the claim for compassionate appointment need not be considered at this juncture. Writ petition is allowed with directions. No costs.