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2018 DIGILAW 595 (JK)

Neelakshi Tuli v. State of J&K

2018-08-03

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. The petitioner claims to be a Graduate in Music & Fine Arts from Jammu University and Post Graduate in Music from Punjab University. 2. The case set up by the petitioner is that her mother Smt. Satya Devi Verma, was working as Senior Lecturer in District Institute of Education and Training (DIET) Jammu. It is averred in the writ petition that on 03.10.1998, the mother of the petitioner left home for attending her duties in the office of DIET, Jammu, but she did not return home in the evening, thereby compelling the petitioner to approach the police authorities and a missing report was lodged. The mother of the petitioner was reported missing/declared dead on 03.10.1998 while in active service of the respondent-department. The petitioner claims that she is fully eligible for compassionate appointment under SRO-43 of 1994 i.e. J&K (Compassionate Appointment) Rules, 1994, age-wise as well as qualification-wise. 3. It is stated in the petition that petitioner had made a written request for compassionate appointment to Principal, District Institute of Education and Trainings, Jammu within time, wherein a request was made to appoint the petitioner on compassionate and humanitarian ground on the post of Music Teacher in lieu of her mother, the deceased Govt. employee. However, Respondent No. 4, Principal, District Institute of Education and Trainings, Jammu Kept the matter pending on one pretext or the other and has not considered the claim of the petitioner. In the petition it is further averred that mother of the petitioner, Smt. Satya Devi Verma was a Government employee and was financially supporting the entire family of the petitioner including her two younger sisters and due to stoppage of regular financial assistance to the family of the petitioner has resulted great hardship and sufferings. It is averred in the petition that respondents has deprived the petitioner of her legal right to appointment on compassionate grounds. 4. It is further stated that vide communication dated 10.04.2001, Respondent No. 4 recommended the case of the Petitioner to Respondent No. 2, Director, School Education, Jammu for considering the claim of the petitioner on compassionate grounds for appointment as Teacher. 4. It is further stated that vide communication dated 10.04.2001, Respondent No. 4 recommended the case of the Petitioner to Respondent No. 2, Director, School Education, Jammu for considering the claim of the petitioner on compassionate grounds for appointment as Teacher. The said recommendation was not considered and on 04.12.2004 respondent No. 2 had written a letter to respondent No. 3 for furnishing the requisite documents/information of the petitioner, however, Respondents have not intimated the petitioner for furnishing of the requisite documents and only on 13.09.2006, Respondent No. 3, Chief Education Officer, Jammu petitioner was intimated to supply the requisite documents. The petitioner thereafter provided the requisite documents to the respondents. 5. In the petition is submitted that on 19.07.2006 the petitioner obtained a decree from Civil Court, whereby her mother Smt. Satya Devi Verma has been declared as dead and the dependants, namely, Neelakshi Tuli and Charu Tuli have been declared as sole legal heirs of the deceased- late Smt. Satya Devi Verma. The petitioner thereafter furnished the legal heir certificate to the respondents and also applied for justification certificate under SRO 43 of 1994 before the Deputy Commissioner, Jammu. The Deputy Commissioner, Jammu after conducting the enquiry by the Tehsildar, issued the same to the petitioner and the said certificate was submitted to the Respondents for considering her case for compassionate appointment. However, vide communication dated 06.01.2009, the Respondents have rejected the case of the petitioner without any valid ground. 6. Objections have been filed by the respondents. The stand taken by the respondents is that SRO 43 of 1994 is applicable only in case of employees who die in harness or as a result of militancy related action. The further stand taken by the respondents in the objections is that mother of the petitioner was reported missing in the year 1998 and not dead, as such, petitioner was not entitled to be appointed under SRO 43. It is stated that after the missing of the employee i.e. mother of the petitioner, the family was dependent on the father of the petitioner who was also an employee and after the Court declared the employee as dead, father of the petitioner was also declared as sole legal heir. It is stated that after the missing of the employee i.e. mother of the petitioner, the family was dependent on the father of the petitioner who was also an employee and after the Court declared the employee as dead, father of the petitioner was also declared as sole legal heir. It is further stated that case of the petitioner for compassionate appointment was considered sympathetically, however, she was not found eligible to appointment under SRO 43 as she was dependent on her father who was an employee. 7. I have heard counsel for both sides and gone through the SRO 43. It reads as under:- “GOVERNMENT OF JAMMU AND KASHMIR GENERAL ADMINISTRATION DEPARTMENT. Notification Jammu, the 22nd February, 1994 SRO-43. —In exercise of the powers conferred by section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to make the following rules, namely :- 1. Short title and commencement. — (l) These rules may be called the Jammu and Kashmir (Compassionate Appointment) Rules, 1994. (2) These rules shall be Deemed to have come into force from the 24th day of September, 1991. 2. Application of rules: - These rules shall apply to the compassionate appointment of a person who is a family member of: - (i) a Government employee who dies in harness other than due to militancy related action ; (ii) 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: (iii) a civilian 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]not involved in militancy related activities and 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; (iv) [A member of the Armed Forces not above the rank of Junior Commissioned Officer or a member of Paramilitary Forces of equivalent rank who is a permanent resident of State and is killed while discharging the duties in conn- ection with law and order in the State of Jammu and Kashmir or as a result of enemy action on the Line of Actual Control[International Border] (2) Explanation: — For purposes of these rules. (a) 'Armed Force’ means Navy, Military, Air Force; (b) 'Para Military Force' means a force constituted under any law for the time being in force made by the Competent Legislature; (c) 'Permanent Resident' means the permanent resident of the State of Jammu and Kashmir as defined section 6 of the Constitution of Jammu and Kashmir; (d) 'Family Member means spouse, son, daughter, adopted son, adopted daughter, sister or brother dependent on the deceased.” 8. From bare perusal of pleading of petitioner, it is evident that petitioner herein applied for compassionate appointment on account of missing of her mother-Smt. Satya Devi since 03.10.1998 who was Senior Lecturer in District Institute of education and Training (DIET), Jammu. As per petition, petitioner made a written request for compassionate appointment to Principal, District Institute of Education and Trainings, Jammu within time, wherein a request was made to appoint the petitioner on compassionate and humanitarian ground on the post of Music Teacher in lieu of her mother, the deceased Govt. employee. However, respondent No. 4, Principal, District Institute of Education and Trainings, Jammu Kept the matter pending on one pretext or the other and has not considered the claim of the petitioner. 9. So admittedly when petitioner applied for compassionate appointment, her mother was not dead, but was missing. There are requisite conditions for appointing family member of a person who died in harness under SRO 43. Firstly, there should be death of a person specified in Rule 2. Secondly, one of the family members of the deceased should be eligible as per Rule. Thirdly, that family member should be dependent upon the deceased; and fourthly, application should be made within one year of death or within one year from the date of gaining eligibility. These are sine-qua-non for seeking appointment under SRO 43. 10. Secondly, one of the family members of the deceased should be eligible as per Rule. Thirdly, that family member should be dependent upon the deceased; and fourthly, application should be made within one year of death or within one year from the date of gaining eligibility. These are sine-qua-non for seeking appointment under SRO 43. 10. Section 108 of Evidence reads as under:- “Burden of proving that person is alive who has not been heard of for seven years. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.” 11. Section 108 enables the Courts under the circumstances stated therein to draw the statutory presumption that a man is not alive, if he is not heard for 7 years. When a person goes missing, he can be declared dead, if he is not heard for 7 years. So application of petitioner was not maintainable when she applied. Further, petitioner has annexed decree of legal heirs granted by civil court on 19.7.2006 by the Court of 3rd Additional Munsiff, Jammu, wherein said mother was declared dead and father of petitioner namely Madan Lal has been declared as sole legal heir. It has also been held by the Civil Court that the husband namely Madan Lal shall be entitled to service benefits of deceased Satya Devi Verma. 12. The father of petitioner was employee at the time of missing of mother of petitioner in 1998, so petitioner was not dependent upon her mother. 13. In view of above discussion, this petition is dismissed as the same is without any merits.