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2017 DIGILAW 362 (JK)

Shahida Begum v. State

2017-07-18

B.S.WALIA

body2017
JUDGMENT : 1. Petitioner’s husband late Sh. Mohd Latif, who was a Government teacher died in the year 2001 leaving behind the petitioner and three minor children i.e. two daughters and one son. The petitioner, who is an illiterate, claims that respondent No.7, who is the brother of her husband, taking advantage of her being illiterate, got processed his case for compassionate appointment and was successful in getting appointed on compassionate grounds on account of death of her husband in the year 2009 despite the fact that the petitioner had submitted an application for compassionate appointment to the official respondents immediately in the year 2001 itself on account of death of her husband. 2. Learned counsel for the petitioner contends that one of the daughters of the petitioner, who was minor at the time of death of petitioner’s husband, attained majority in the year 2013 and is, therefore, entitled for compassionate appointment and has accordingly represented to the Director School Education Jammu vide representation Annexure D dated 05.01.2013 and that no action has been taken on the representation of the petitioner for compassionate appointment to her daughter, who attained majority in the year 2013, instead compassionate appointment was given to her brother-in-law on the basis of fictitious, fabricated and forged documents. 3. Learned counsel contends that prayer in the instant writ petition is two fold. One is with regard to grant of compassionate appointment to one of the petitioner’s daughter and second is regarding initiation of an appropriate action against respondent No.7 on account of fraud played by him in obtaining appointment on compassionate basis. Learned counsel contends that on the representation of the petitioner, the Director School Education i.e respondent No.3 has directed for calling of explanation of respondent No.7 and has also ordered withholding of payment of salary to respondent No.7 till such time that explanation was submitted and considered. However, the direction of respondent No.3 on the representation of the petitioner has not been complied with by respondent Nos.4 and 5 till date. 4. Per contra, learned counsel for respondent No.7 states that the writ petition is based on absolutely false and fictitious averments and respondent No.7 is ready to face any probe with regard to no objection given by the petitioner on the basis of which he was appointment on compassionate basis. 4. Per contra, learned counsel for respondent No.7 states that the writ petition is based on absolutely false and fictitious averments and respondent No.7 is ready to face any probe with regard to no objection given by the petitioner on the basis of which he was appointment on compassionate basis. Learned counsel states that, in fact, family arrangement was arrived at between the parties on the basis of which, respondent No.7 has been making payment of Rs.2500/- per month as maintenance to the children of the petitioner ever since he got appointment on compassionate basis. In addition thereto, the petitioner got family pension on account of death of her husband at the rate of Rs.7093/- to Rs.12810/- per month for the first seven years after the death of her husband and thereafter, till February 2013, the petitioner was drawing Rs.6555/- per month as pension while pension drawn by the petitioner in the month of February 2013 was Rs.10353/-. Learned counsel further contends that there is no denial by way of rejoinder to the aforementioned averments in paragraph No.7 of the objections filed. Learned counsel contends that even otherwise the petitioner being illiterate as per her own admission was not eligible for appointment in terms of SRO 43 of 1994. 5. Be as it may, the fact remains that the petitioner’s husband died in the year 2001 and the petitioner claims to have given an application for compassionate appointment in the year 2001 itself, but has slept over her right till the year 2013 when one of her daughter became major and eligible for compassionate appointment. In the intervening period of time, respondent No.7 was given compassionate appointment on account of death of petitioner’s husband on the basis of alleged no objection certificate given by the petitioner which learned counsel for the petitioner vehemently disputes. 6. On the other hand, learned counsel for respondent No.7 has categorically stated that no objection certificate was given by the petitioner out of her own free will and that respondent No.7 is willing to face any probe in respect thereto. 6. On the other hand, learned counsel for respondent No.7 has categorically stated that no objection certificate was given by the petitioner out of her own free will and that respondent No.7 is willing to face any probe in respect thereto. Learned counsel contends that the fact that the petitioner was not eligible besides did not invoke the jurisdiction of this Court for a period of close to 12 years from the date of accruing cause of action goes to show that the claim of the petitioner is not only misconceived but is also hit by delay and laches. 7. After hearing learned counsel for the parities, I find merit in the submissions of learned counsel for respondent No.7. The petitioner’ husband died in the year 2001. Admittedly, the petitioner gave an application for compassionate appointment in the year 2001 itself, but chose not to invoke the jurisdiction of this Court for a period of close to 12 years. In between, she was receiving family pension which cannot be said to be a meagre amount as per details given above. In addition thereto, respondent No.7 has taken up a stand in paragraph No.7 of the objections that he has been making payment of Rs.2500/- per month as maintenance to the children of the petitioner. There is no denial to the aforementioned averments by way of rejoinder. The petitioner gave a representation to the Director School Education only in the year 2013 when one of her daughters became major. The object of providing compassionate appointment is to prevent the family from being deprived of sustenance on account of death of bread winner. Admittedly, the petitioner is in receipt of family pension. Respondent No.7 is also claiming to be giving Rs.2500/- per month as maintenance to the petitioner. In the circumstances, without commenting upon the action of the respondents in giving compassionate appointment to respondent No.7, I find no merit in the claim of the petitioner for grant of compassionate appointment to her. However, if permissible as per the policy, it would be open to the official respondents to consider the claim of the petitioner’s daughter for grant of compassionate appointment in accordance with rules and regulations applicable. However, if permissible as per the policy, it would be open to the official respondents to consider the claim of the petitioner’s daughter for grant of compassionate appointment in accordance with rules and regulations applicable. Be as it may, it is further ordered that the official respondents would look into the question as to whether respondent No.07 has obtained appointment on the basis of false and fabricated no objection certificate alleged to have been given by the petitioner for which it would be open to the petitioner as well as respondent No.07 to produce any documentary evidence in respect thereto. 8. At this stage, learned counsel for the petitioner states that the official respondents be directed to take into account the documents placed on record by respondent No.7 evidencing no objection certificate stated to have been given by the petitioner in favour of respondent No.7 namely Affidavit dated 27th March 2008 allegedly executed before Sub Registrar Jammu, affidavit dated 6th December 2007 allegedly executed before learned CJM Doda, Affidavit dated 1st June 2016 allegedly executed before Oath Commissioner Doda. Needless to mention, the aforementioned documents be also taken into account by the competent authority before taking any decision in the mater. It is further ordered that respondent No.7 in terms of his stand that he has been making payment of Rs.2500/- per month as maintenance to the petitioner shall continue to make payment of Rs.2500/- per month on account of maintenance to the children of the petitioner in accordance with family arrangement arrived at between the parties and the said amount would also be open to revision as and when the pay scale of respondent No.7 is revised from time to time. The amount of Rs.2500/- per month would be deposited by respondent No.7 in the name of children of the petitioner in a bank account to be maintained by the petitioner as natural guardian. Needful be done as expeditiously as possible preferably within a period of six months from the date of receipt of certified copy of this order by the competent authority. 9. With the aforementioned directions, writ petition is disposed of.