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2018 DIGILAW 948 (JK)

Kamlesh Kumari v. State of J&K

2018-12-03

GITA MITTAL, TASHI RABSTAN

body2018
JUDGMENT : 1. By way of the instant appeal, Smt. Kamlesh Kumari-appellant No. 1 and Shri Tilak Raj-appellant No. 2 have assailed the judgment and order dated 26th of April, 2018 passed in SWP No. 3400/2015 directing the official respondents to consider the case of Smt. Menu Kumari (petitioner in the writ petition) for appointment strictly in terms of The Jammu and Kashmir (Compassionate Appointment) Rules, 1994, within a period of six weeks of the passing of the order. 2. The facts giving rise to filing of the instant appeal are within a narrow compass. 3. Smt. Meenu Kumari, (age 24 years in the year 2015 when the writ petition was filed), is the widow and was legally wedded wife of late Shri Bushan Kumar S/o Shri Romesh Chander. Late Shri Bushan Kumar stood appointed on 09th of March, 2007 as Jewer in MLA Hostel, Jammu in a department of the Legislative Assembly Civil Sectt. Jammu/ Srinagar. The deceased-Bushan Kumar unfortunately, died in harness on 31st of December, 2014, leaving behind Smt. Menu Kumari as his widow and one minor son, namely, Abhimanyu, who, in the year 2015 when the writ petition was filed, was only four years of age. 4. Upon the demise of husband, Smt. Menu Kumari applied for dependent certificate to the Deputy Commissioner, Jammu and a certificate dated 16th of April, 2015 came to be issued in her favour. Armed therewith, Smt. Meenu Kumari applied to her husband's department for appointment on compassionate basis under SRO 43 of 1994. 5. As the official respondents failed to act upon the request for compassionate appointment, Smt. Meenu Kumari filed SWP No. 1653 of 2015 seeking a direction from the Court for appointment on compassionate basis. The aforesaid writ petition was disposed of vide an order dated 2nd of June, 2015 with a direction to the official respondents to take a decision on the representation made by Smt. Meenu Kumari within a period of six weeks therefrom. All efforts to receive justice thereafter by Smt. Meenu Kumari were of no avail. The aforesaid writ petition was disposed of vide an order dated 2nd of June, 2015 with a direction to the official respondents to take a decision on the representation made by Smt. Meenu Kumari within a period of six weeks therefrom. All efforts to receive justice thereafter by Smt. Meenu Kumari were of no avail. However, during this period, Smt. Kamlesh Kumari (appellant No. 1 herein) started making representations to the official respondents claiming that she was the second wife of deceased-Bushan Kumar's father, therefore, she (Smt. Kamlesh Kumari) was his step mother; that she did not have any child of her own and that the respondent No. 3 ought to have considered her entitlement before issuance of letter dated 21st of July, 2015. 6. In view of the claim set up by Smt.Kamlesh Kumari, the Secretary, Jammu and Kashmir Legislative Assembly, issued a letter dated 30th of July, 2015, observing that there was a controversy with regard to the dependent certificate issued to the petitioner and therefore, denied the compassionate appointment to Smt. Meenu Kumari. 7. Smt. Meenu Kumari has also placed on record the fact that during the life time of her husband in the year 2010, she had been compelled to file a petition under Section 488 of Cr.P.C. titled Meenu Kumari vs. Bhusan Malhotra, before the Court of Learned Sub Judge, Special Railway Magistrate, Jammu for grant of maintenance against her husband. This petition was allowed by the learned Magistrate by an order dated 26th of May, 2011 in favour of the Smt. Meenu Kumari and Bhushan Kumar was directed to pay monthly maintenance of Rs. 2,000/- in her favour and Rs. 2,000/- per month for maintenance of her minor child. 8. Aggrieved of the denial of appointment on compassionate basis as well as benefits under SRO 43 of 1994, Smt. Meenu Kumari filed a petition bearing SWP No. 3400/2015, seeking a direction to the respondents to consider her case for appointment on compassionate basis. This petition was considered by the learned Single Judge who vide judgment dated 26th of April, 2018, decided the same by holding as follows:- “In view of the statement made by learned Sr. AAG, this petition is disposed of and communication bearing No. LA 1989/Adm/2015 dated 30.07.2015 shall stand quashed. This petition was considered by the learned Single Judge who vide judgment dated 26th of April, 2018, decided the same by holding as follows:- “In view of the statement made by learned Sr. AAG, this petition is disposed of and communication bearing No. LA 1989/Adm/2015 dated 30.07.2015 shall stand quashed. Let the respondents consider the case of the petitioner for appointment strictly in terms of Jammu and Kashmir (Compassionate Appointment) Rules, 1994, within a period of six weeks from the date a certified copy of this order along with complete set of writ petition is made available to them.” (Emphasis supplied) 9. The present appeal has been filed by Smt. Kamlesh Kumari the step mother of deceased-Bhushan Kumar as appellant No. 1 aggrieved by this judgment. One Shri Tilak Raj S/o Late Shri Romesh Chander has been arrayed as appellant No. 2. The body of the appeal discloses that Shri Tilak Raj, claims to be the real brother of deceased-Bhushan Kumar and has set up claim for entitlement for consideration of appointment on compassionate basis. It has been orally contended before us by Mr. Meharban Singh, learned counsel for the appellant that the brother of the deceased-Bhushan Kumar has to be considered as a member of family for the reason that he has no source of income. 10. It has further been submitted that Smt. Meenu Kumari was an estranged wife of deceased-Bhushan Kumar and for this reason could not have been considered for appointment on compassionate basis. On the contrary, it is submitted that Smt. Kamlesh Kumari, her step mother had cordial relations with the deceased, had to be considered for appointment. 11. The further submission is that the Deputy Commissioner, Jammu, who has issued a dependent certificate dated 14th of October, 2016 in favour of Smt. Meenu Kumari, has proceeded illegally in as much as he gave no notice to Smt. Kamlesh Kumari before passing the order. 12. We propose to consider the claim set up by Smt. Kamlesh Kumari and Shri Tilak Raj. We may first and foremost consider the claim set up by Shri Tilak Raj, the brother of deceased Bhushan Kumar-appellant No. 2. In our view, the submissions made by the learned counsel for the appellants are completely misconceived and legally untenable. 13. 12. We propose to consider the claim set up by Smt. Kamlesh Kumari and Shri Tilak Raj. We may first and foremost consider the claim set up by Shri Tilak Raj, the brother of deceased Bhushan Kumar-appellant No. 2. In our view, the submissions made by the learned counsel for the appellants are completely misconceived and legally untenable. 13. In this regard, we extract the Explanation (d) to Rule 2 of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994 regarding the definition of family members including the dependents as follows:- “2.(d) “Family Member” means spouse, son, daughter, adopted son, adopted daughter, sister or brother dependent on the deceased.” 14. Shri Tilak Raj is stated to be 34 years of age and there is no material at all before this Court that he was dependent upon the deceased-Bhushan Kumar. 15. In this regard, we may also advert to order dated 26th of May, 2011 passed by learned Sub Judge, Special Railway Magistrate, Jammu on the prayer of Smt. Meenu Kumari under Section 488 Cr.P.C. The same does not contain any reference to Shri Tilak Raj as a dependent of deceased Bhushan Kumar. The deceased had appeared in the matter. 16. Furthermore, so far as the writ petition is concerned, Smt. Kamlesh Kumari stood impleaded as respondent No. 4 in view of the claim which she had set up Shri Tilak Raj was not a party in the writ petition. In our view, he has no right at all in the matter and could not have filed the instant appeal. 17. Now coming to the plea set up by Smt. Kamlesh Kumari, the record shows that initially dependent certificate dated 16th of April, 2015 was issued by the Assistant Commissioner (Rev), Jammu, noting Smt. Kamlesh Kumari as “Mother” of deceased-Bhushan Kumar. This certificate was issued in favour of Smt. Meenu Kumari by the Assistant Commissioner (Rev), Jammu. The issuance of this certificate was assailed by Smt. Kamlesh Kumari by way of an appeal before the Court of Deputy Commissioner, Jammu. This certificate was issued in favour of Smt. Meenu Kumari by the Assistant Commissioner (Rev), Jammu. The issuance of this certificate was assailed by Smt. Kamlesh Kumari by way of an appeal before the Court of Deputy Commissioner, Jammu. Persuaded by the plea set up by Smt. Kamlesh Kumari that she was the mother of deceased, the Deputy Commissioner, Jammu passed decision dated 27th of May, 2016 to the effect that “the dependent certificate dated 16th of April, 2015 does not reveal that the consent of the mother of the deceased was taken.” In this background, the dependent certificate dated 16th of April, 2015 was set aside and the matter was remanded to the Assistant Commissioner, Revenue, Jammu to hold fresh enquiry by initiating denovo process of issuing the dependent certificate in favour of the deserving person as per procedure prescribed under rules. The direction was issued that the Assistant Commissioner, Revenue, Jammu should accord consideration to the objections of the mother and the relevant parties, if any. 18. After reconsideration of the matter, the Assistant Commissioner, Revenue, Jammu has passed a detailed order and issued a dependent certificate dated 14th October, 2016. This order records that a fresh enquiry stood conducted resulting in issuance of the dependent certificate and the opportunity stood given to Smt. Kamlesh Kumari as well as Smt. Meenu Kumari for establishing their claim. 19. We find that the dependent certificate dated 14th of October, 2016, this time has correctly noted the relationship of the family of deceased Bhushan Kumar. Smt. Kamlesh Kumari was now recorded as step mother of deceased-Bhushan Kumar while Smt. Meenu Kumari is shown as his wife and Abhimanyu as his four years old son. In the certificate dated 14th of October, 2016, the Assistant Commissioner, (Rev), Jammu, has also noted as follows:- “The relation between Smt. Kamlesh Kumari, step-mother of the deceased and Smt. Meenu Kumari, wife of deceased, are not cordial and is therefore objecting to the issuance of dependent certificate in favour of wife of the deceased. On further enquiry it has been established that Smt. Kamlesh Kumari is getting pension @ Rs. 18,000/- per month on behalf of her late husband and Smt. Meenu Kumari, widow of the deceased has not re-married and has to up bring 04 years old son of the deceased.” (Emphasis supplied) 20. The submission of Mr. On further enquiry it has been established that Smt. Kamlesh Kumari is getting pension @ Rs. 18,000/- per month on behalf of her late husband and Smt. Meenu Kumari, widow of the deceased has not re-married and has to up bring 04 years old son of the deceased.” (Emphasis supplied) 20. The submission of Mr. Meharban Singh, learned counsel for the appellants to the effect that the contentions of his clients have not been considered is completely devoid of legal merit and has to be denied. 21. Mr. Meharban Singh, learned counsel would also submit that if during his life time, Shri Bhushan Kumar had filed a petition for restitution of conjugal rites and Smt. Meenu Kumari had failed to assail the judgment passed in this petition directing Smt. Meenu Kumari to join cohabitation with Bhushan Kumar. The appellants before us, however, failed to disclose the particulars of the petition. 22. In any case, the motive behind filing of the petition under Section 9 of the Hindu Marriage Act, 1955 is clear on the face of the record. We find that so far as the relief of maintenance which was sought by Smt. Meenu Kumari under Section 488 of Criminal Procedure Code is concerned, she was constrained to institute a petition on 29th of July, 2010. The order of maintenance in her favour stood passed by the learned Magistrate as back on 26th of May, 2011. The perusal of the order would show that the Magistrate has noted that Smt. Meenu Kumari:- “..........a destitute lady on the verge of vagrancy and starvation. That the respondent is a man of means being Government employee, having salary of Rs. 15,000/- per month and out of that, he can easily pay Rs. 5,000/- to the petitioner as maintenance. She has not left the matrimonial home of her free will, rather circumstances were made by the respondent to throw the petitioner out of the matrimonial home without any reason or cause and the respondent further refused to maintain the petitioner despite having sufficient source of income and means and prayed for grant of Rs. 5000/- per month as maintenance in her favour. The petition is supported by an affidavit.” (Emphasis supplied) 23. 5000/- per month as maintenance in her favour. The petition is supported by an affidavit.” (Emphasis supplied) 23. Clearly, filing of the petition under Section 9 of the Hindu Marriage Act, 1955 on 14th of June, 2014 by Shri Bhushan Kumar, is obviously a defence and to avoid the compliance with the order of maintenance granted in favour of Smt. Meenu Kumari. In this background, the mere filing of a petition for restitution of conjugal rights, does not favour the case. 24. It is trite that a step-mother cannot claim any entitlement to compassionate appointment upon demise of her step son, who died in harness. It is the admitted position that there was no dissolution of marriage of Bhushan Kumar and Smt.Meenu Kumari by any decree of divorce by the Court of competent jurisdiction. Abhimanyu is acknowledged to be a minor son of deceased Bhushan Kumar who is of tender age of six years. The findings of the learned Magistrate that Smt. Meenu Kumari is a destitute lady on the verge of vagrancy and starvation cannot be ignored and the plight of the minor son of deceased-Bhushan Kumar does not need much imagination. 25. The above narration and facts clearly shows that Smt. Kamlesh Kumari has also no locus standi to file the writ petition. The claim set up by her, to our mind, is completely devoid of legal merits. To say the least, it is a desperate attempt borne out of greed and to deprive the legitimate entitlement and aspirations of the widow and the son of the deceased employee of the State of their entitlement under SRO 43 of 1994. Compassionate appointment is to provide succor to the family members of a government employee, who has died in harness to enable them to tide over the crisis which results to them on account of demise of bread earner in the family. In the instant case, the need of the widow and son, stands established by the orders passed by the learned Magistrate under Section 488 of Cr.P.C. 26. We are of the view that the Judgment passed by learned Single Judge, cannot be interfered with on any of the legal tenable grounds. For all these reasons, this appeal, found to be devoid of merits and is hereby dismissed. 27. We are of the view that the Judgment passed by learned Single Judge, cannot be interfered with on any of the legal tenable grounds. For all these reasons, this appeal, found to be devoid of merits and is hereby dismissed. 27. The present case is a fit case where Smt. Meenu Kumari-respondent No. 4 deserves to be compensated with adequate compensatory costs to be paid by the appellants. The appellants shall pay costs of the present litigation to Smt. Meenu Kumari which are quantified at Rs. 20,000/- (Twenty Thousand only). The same shall be paid by the appellants to Smt. Meenu Kumari within a period of two weeks from today. 28. The official respondents shall forthwith comply with the directions in the judgment dated 26th of April, 2018.