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2018 DIGILAW 731 (GUJ)

REKHA NANAKCHAND YADAV v. UNION OF INDIA

2018-06-12

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner, sister of an Indian prisoner - Shri Kuldip Yadav, who is reported to be in Pakistan Jail, has prayed for an appropriate writ, order or direction, directing the respondents to consider the case of the petitioner for appointment on compassionate grounds as per her educational qualification. The petitioner has also prayed to direct the respondents to pay ex-gratia compensation to the petitioner over and above Rs.5,00,000/- awarded by this Court vide order dated 02.04.2008 passed in Special Civil Application No.12239/2007. 2. The facts leading to the present Special Civil Application, so pleaded in the petition and do not seem to be in dispute, in nutshell are as under:- 2.1 It is the case on behalf of the petitioner that the brother of the petitioner, Shri Kuldip Yadav was recruited by BSF for RAW military intelligence in the year 1991 at Ahmedabad. That he was deputed at New Delhi and thereafter was sent to Pakistan. 2.2 That the said Shri Kuldip Yadav was arrested in Pakistan on 22.06.1994. He was interrogated for 30 months. That thereafter, he has been sentenced for 25 years long imprisonment by Court Martial Military Court of Pakistan vide order dated 12.12.1996. It is the case on behalf of the petitioner that to the best of her knowledge and information, said Shri Kuldip Yadav is languishing in Pakistan Jail. 2.3 It is the case on behalf of the petitioner that the father of the petitioner made several efforts to get him released from Pakistan Jail and made several representations to different authorities, including the office of the Hon’ble President of India and the office of the Ministry of External Affairs but it could not be materialised. 2.4 According to the petitioner, on 09.03.2000, one Indian prisoner Shri M.S.Ansari, who returned from Pakistan Jail also wrote a letter to the father of the petitioner that Shri Kuldip Yadav is in Pakistan Jail. According to the petitioner, her brother Shri Kuldip Yadav is detained in Kot Lakhpat Jail, Lahore. It is the case on behalf of the petitioner that all efforts by the petitioner and her family members to release Shri Kuldip Yadav from Pakistan Jail have not materialised and have failed. According to the petitioner, her brother Shri Kuldip Yadav is detained in Kot Lakhpat Jail, Lahore. It is the case on behalf of the petitioner that all efforts by the petitioner and her family members to release Shri Kuldip Yadav from Pakistan Jail have not materialised and have failed. 2.5 It appears that the petitioner and mother of Shri Kuldip Yadav approached this Court by way of Special Civil Application No.12239/2007 for an appropriate writ, direction or order, directing the respondents to take the up the matter with Ministry of External Affairs, Islamabad at Pakistan for release of Shri Kuldip Yadav from Kot Lakhpat Jail, Lahore, Pakistan, and other prisoners from Pakistan Jail. That considering the observations made by the Hon'ble Supreme Court in the order passed in Writ Petition (Criminal) No.16/2008 in the matter of Gopal Dass through Brother Anand Vir v. Union of India and Anr. dated 14.03.2011, the Division Bench of this Court disposed of the said petition with a request to the Pakistan authorities to consider the appeal of the petitioners – heirs of deceased widowed mother of the prisoner in Pakistan Prison for remitting the remaining period of sentence and releasing him as well as other similarly situated Indian prisoners. It appears that thereafter, nothing further has been done so far as release of Shri Kuldip Yadav is concerned. Nothing is forthcoming even with respect to other similarly situated prisoners. However, the mother of said Shri Kuldip Yadav has been paid an ex-gratia amount of Rs.5,00,000/- in compliance of the order dated 02.04.2008 passed in Special Civil Application No.12239/2007. 2.6 It appears that thereafter, the sister of said Shri Kuldip Yadav made an application to the respondent-authorities for compassionate appointment. However, as the same has not been considered and/or the petitioner has not been given appointment on compassionate ground, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs. 3. It appears from the record that pending the petition, the petitioner made a representation to the Ministry of Home Affairs for appropriate reliefs. Vide order dated 15.07.2014, the Division Bench observed that the pendency of the petitioner shall not prevent the respondents from considering such representation, if so made, expeditiously. That thereafter, the matter came to be adjourned time and again. Vide order dated 15.07.2014, the Division Bench observed that the pendency of the petitioner shall not prevent the respondents from considering such representation, if so made, expeditiously. That thereafter, the matter came to be adjourned time and again. By order dated 22.11.2016, the Division Bench of this Court adjourned the matter to 14.12.2016 with observation that in the meanwhile, efforts to be made by respondents to secure the release of the detenue/ prisoner through appropriate authorities and shall apprise this Court. That thereafter, the matter came to be adjourned time and again. However, no fruitful result has been achieved. 4. In response to the notice issued by this Court, Shri Nikunt Raval, learned advocate, has appeared for respondents – Union of India and others. It is submitted on behalf of the respondents that the representation of the petitioner has been duly considered by the appropriate authorities and the prayer of the petitioner for appointment on compassionate ground does not fall in any of the criteria of the consolidated instructions on compassionate appointments, as by virtue of the consolidated instructions, compassionate appointment is required to be made only in the event of the Government servant dying in harness or who has retired on medical grounds leaving the family without pecuniary support, without any means of livelihood and leaving the family in financial destitution. Therefore, it is requested to dismiss the present petition. 5. Heard learned counsel for the respective parties at length. 6. At the outset, it is required to be noted that it is an admitted position that the brother of the petitioner, Shri Kuldip Yadav, is in Pakistan Jail and undergoing sentence pursuant to punishment imposed by the Court Martial and is a convict prisoner lodged at Kot Lakhpath Jail, Lahore. Even by reply given by the Joint Secretary (Wel. & Inf.) and Central Public Information Officer, Ministry of External Affairs, New Delhi, dated 16.08.2007, the advocate for the petitioner was informed that as per the records available with the Indian High Commission in Islamabad, a person named Shri Kuldip Kumar is a convict prisoner and is lodged in Kot Lakhpat Jail, Lahore, since June 22, 2004. He was a convict in December 1996 for 25 years in prison on the charges of spying. In the said communication, it is also mentioned that the Department/Indian Government is actively pursuing with the Government of Pakistan for his early release. He was a convict in December 1996 for 25 years in prison on the charges of spying. In the said communication, it is also mentioned that the Department/Indian Government is actively pursuing with the Government of Pakistan for his early release. However, the fact remains that thereafter, all efforts to get the said Shri Kuldip Yadav released seems to have failed. It is the case on behalf of the petitioner that her brother Shri Kuldip Yadav was recruited by BSF for RAW – Military in the year 1991 at Ahmedabad and thereafter, he was deputed at New Delhi and thereafter he was sent to Pakistan to work on a secret mission. However, in the earlier proceedings, as well as in the present petition, it is denied by the Union of India and others that he was appointed by BSF or any other agency. According to the respondents, there is no record available. In the peculiar facts and circumstances of the case, naturally, there may not be any record available, more particularly with respect to such persons who may be appointed for secret services, they may not have any actual proof of appointment and in a given case, even the concerned Department may also deny his appointment in the Department. However, the fact remains that said Shri Kuldip Yadav, the brother of the petitioner herein, is undergoing sentence and is a prisoner in Kot Lakhpat Jail at Lahore, Pakistan, on the ground of spying. The main ground on which the petitioner is denied the appointment on compassionate ground is that as per the consolidated instructions, compassionate appointment is required to be made only in the event of Government servant dying in harness or who has retired on medical grounds leaving the family without pecuniary support. Therefore, in the facts and circumstances of the case narrated hereinabove and more particularly, when the brother of the petitioner Shri Kuldip Yadav is a prisoner of the Pakistani authorities and is undergoing sentence in Kot Lakhpat Jail, Lahore, Pakistan, for spying, the case is required be treated as an absolutely exceptional one and the sister of the petitioner is required to be given appointment on compassionate grounds looking to her educational qualifications. Any technicalities shall not come in the way of the family members of such detenue in getting at least such relief. Such case can be considered to be absolutely exceptional one. 7. Any technicalities shall not come in the way of the family members of such detenue in getting at least such relief. Such case can be considered to be absolutely exceptional one. 7. In view of the above and for the reasons stated above and considering the petitioner’s case to be an exceptional one, the present petition is allowed in part. The concerned respondents are hereby directed to consider the case of the petitioner for appointment on compassionate ground looking to her educational qualification and consequently to appoint the petitioner on compassionate ground as an exceptional case. Such exercise shall be completed within a period of four weeks from the date of receipt of the writ of the present order. Rule is made absolute to the aforesaid extent. Registry is directed to issue writ of this order to the concerned respondents forthwith.