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2016 DIGILAW 454 (JK)

State of J&K v. Yasmeen Akhter

2016-09-19

ALI MOHD.MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : Ali Mohd. Magrey, J. COD No. 166/2016 1. The limitation petition seeks condonation of delay of 327 days that has crept in filing the Letters Patent Appeal against the judgment and order dated 20.06.2015 passed in SWP No. 995/2013, in a case titled Yasmeena Akhter v. State of J & K & Ors. Mr. Jahangir Iqbal, learned Advocate General, submits that the applicants have a strong case on merits in LPA, and applicants/appellants would be highly prejudiced in case the limitation petition is not granted. He would submit that the delay in the matter is neither deliberate nor intentional but has occasioned because of the circumstances beyond the control of applicants/appellants. He further submits that justice would become a casualty and applicants/appellants would be condemned unheard if the limitation petition is not allowed. He therefore, prays that the limitation petition be accepted and the delay occasioned in the matter be condoned. 2. It is a settled law that the party seeking condonation of delay has to account for and explain each day's delay, and if the court is convinced of the explanation tendered the delay occasioned can be condoned. 3. Having regard to the averments taken in the limitation petition coupled with the submissions made by learned Advocate General, We are convinced that a sufficient cause is shown by the applicants to condone the delay occasioned in filing the LPA. 4. Accordingly, the limitation petition is granted and the delay of 327 days occasioned in filing the LPA is condoned. 5. COD No. 166 of 2016 is disposed of. 6. LPA No. 152/2016 is taken on board. 7. The instant Letters Patent Appeal, for short LPA, is preferred by the Appellant-State against the judgment and order dated 20th June, 2015 delivered in a writ petition, SWP No. 995/2013 titled Yasmeen Akhter v. State & Ors. 8. To understand the grievances of appellant in a better perspective, the brief resume of the events is deemed necessary, thus:- 9. Respondent/Writ petitioner had filed a Writ Petition, SWP No. 2521/2012, seeking relaxation in the age/qualification bar so as to make her eligible for appointment on compassionate grounds on any Class-IV post in terms of 1SRO 43 of 1994. 10. To understand the grievances of appellant in a better perspective, the brief resume of the events is deemed necessary, thus:- 9. Respondent/Writ petitioner had filed a Writ Petition, SWP No. 2521/2012, seeking relaxation in the age/qualification bar so as to make her eligible for appointment on compassionate grounds on any Class-IV post in terms of 1SRO 43 of 1994. 10. The Writ Petition was disposed of by virtue of judgment and order dated 03.12.2012 directing Respondent No. 1 to take decision on the recommendation of Director, Department of Social Forestry, J & K, Srinagar, for compassionate appointment within a period of six weeks and the decision so taken shall be conveyed to the petitioner. 11. The case, on consideration, was returned on the ground of petitioner having crossed the upper age limit and accordingly the decision taken was conveyed to Respondent No. 2 in terms of Communication No. 1194/SF/Sgr, dated 18.03.2013. 12. Respondent/writ petitioner subsequently challenged the said communication in a writ petition, SWP No. 995/2013, which came to be disposed of by the Writ Court in terms of impugned judgment and order directing consideration of the matter afresh for appointment on compassionate grounds. The direction for fresh consideration was passed while making reliance and reference to the judgment reported as 2011 SLJ 403 : 2011 (1) JKJ 423 [HC] : JKJ Soft JKJ/25711 in a case titled Bandana Thappa v. State & Ors. 13. Feeling aggrieved the appellant-State has filed the instant LPA to seek reversal of the impugned judgment and order inter alia on the ground that the judgment of which the reference has been made is distinguishable and the upper age limit cannot be relaxed. 14. Heard learned Advocate General and considered the submissions made. 15. Mr. Jahangir Iqbal, learned Advocate General, submits that the impugned judgment and order passed by the Writ Court is beyond the scope of the powers of the Court as there is no provision in the Rules which warrant relaxation in age above five years. He submits that the Government, while considering the judgment passed in a Writ Petition, SWP No. 2142/2012, titled Ms. Manjeet Kour v. State & Ors., has dealt with the same issue vis-à-vis. the relaxation of age and consequent thereto Govt. Order No. 662-GAD of 2015, dated 15.05.2015 has been issued rejecting the case of the applicant on the ground that age beyond five years cannot be relaxed. Manjeet Kour v. State & Ors., has dealt with the same issue vis-à-vis. the relaxation of age and consequent thereto Govt. Order No. 662-GAD of 2015, dated 15.05.2015 has been issued rejecting the case of the applicant on the ground that age beyond five years cannot be relaxed. He further submits that there is no scope of relaxation in upper age beyond five years and the direction of the Writ Court to relax the age beyond that period in case of petitioner goes against the rule position which is impermissible. 16. He further submits that Rule 7 of The Jammu And Kashmir Government Employees (Death in Harness) Dependents Appointment Rules, 1989, provides that the Government may relax the lower or upper age in deserving cases. 17. Mr. Jahangir, learned Advocate General, further submits that eligibility criteria fixed for the post against which appointments are to be made on compassionate grounds is required to be strictly adhered to so as to maintain the minimum standard of efficiency. He further submits that it is otherwise also not open to the Court of law to direct State Respondent to extend the benefit of compassionate appointment to a person who is not otherwise eligible under Rules and that too after the financial crises of that family were over. He further submits that the family of the deceased employee has overcome the financial crises, as such, no prejudice would be done to the petitioner in case her case is rejected. In support of his arguments, learned Advocate General referred to and relied upon (2013) 11 SCC 178 ; and AIR 2012 SC 3281 . 18. Learned Single Judge, while passing the impugned judgment and order has referred to and relied upon a case law reported as 2011 SLJ 403 : 2011 (1) JKJ 423 [HC] : JKJ Soft JKJ/25711. 19. The scope and purpose of the compassionate appointment is to provide an immediate succor to the family whose sole bread earner has died. The object of the scheme cannot be undone by taking recourse to the issue of applicant's having crossed the upper age limit to be eligible for appointment. 20. There is no uniform standard adopted by the State to judge the ground for granting relaxation in age as the circumstances will vary from case to case. 21. The object of the scheme cannot be undone by taking recourse to the issue of applicant's having crossed the upper age limit to be eligible for appointment. 20. There is no uniform standard adopted by the State to judge the ground for granting relaxation in age as the circumstances will vary from case to case. 21. In the present case the widow and the family of the deceased are crying hard for the benefit of compassionate appointment so as to sustain themselves with dignity and the technicality of relaxation in the upper age limit cannot work as an impediment to defeat the esteemed object of the scheme and deprive the family of the deceased bread earner to manage their livelihood. 22. In view of above, we are of the view that the Writ Court has rightly appreciated the controversy and the law referred to and relied upon is aptly applicable to the facts and circumstances of the case. 23. The LPA, therefore, is dismissed and the impugned judgment and order of the Writ Court is maintained. No order as to costs.