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2021 DIGILAW 248 (JK)

Rohit Sharma v. UT of J&K

2021-05-24

DHIRAJ SINGH THAKUR

body2021
JUDGMENT : The matter was heard and dismissed in the open Court on 23.02.2021 with the observations that the reasons would follow. The following is the basis for the order of dismissal. 1. The petitioner is the brother of the deceased-Deepak Sharma, who died in harness while he was serving as a Constable in the police service whereas, private respondent No. 9 is the wife of the deceased. 2. It appears that both the petitioner and private respondent No. 9 have applied for a Dependent Certificate with a view to make themselves eligible for appointment under SRO-43. 3. In the present case, the petitioner seeks to block the consideration of private respondent No. 9 on the ground that the deceased Deepak Sharma had fallen apart from the said respondent on account of her infidelity and, therefore, was forced to commit suicide on that account. 4. It is stated that since the private respondent No. 9 was herself responsible for the death of the brother of the petitioner and thus was not entitled to claim any benefit by exploiting her status as the wife of the deceased. 5. It is further stated that the said private respondent No. 9 was also contemplating a second marriage and even on that count, she was not entitled to be considered at all. Both the petitioner as well as private respondent No. 9 appear to have applied for the issuance of a Dependent Certificate in the office of Assistant Commissioner, Jammu, which forms the basis of consideration for appointment under SRO-43. 6. One of the directions sought to be issued by this Court is that no Dependent Certificate should be issued in favour of the private respondent No. 9 and simultaneously that the process for issuance of the said Dependent Certificate be expedited in favour of the petitioner. A further direction is sought for purposes of expediting the inquest proceedings and for registering an appropriate case against the said private respondent No. 9 for abetting the suicide of the brother of the petitioner. 7. Heard learned counsel for the parties. 8. ‘Family’ as defined under Section 2(d) of the SRO-43 envisages thus:- “Family member means spouse, son, daughter, adopted son, adopted daughter, sister or brother dependent on the deceased.” 9. 7. Heard learned counsel for the parties. 8. ‘Family’ as defined under Section 2(d) of the SRO-43 envisages thus:- “Family member means spouse, son, daughter, adopted son, adopted daughter, sister or brother dependent on the deceased.” 9. Section 3 of the SRO-43 further envisages that an eligible family member of a person specified in Rule 2 may be appointed against a vacancy in the lowest rank of non-gazetted service or class-4th having qualification as prescribed under the relevant recruitment rules. 10. The main thrust of the argument of the learned counsel for the petitioner was that since the definition of a ‘family member’ does not envisage any preference to be given to the wife of the deceased employee, therefore, the wife on that account cannot be considered to the exclusion of any of the other members mentioned in clause 2(d) of the said SRO. 11. Admittedly respondent No. 9 (Sakshi Sharma) was the legally wedded wife of the deceased and is now under an obligation to bring up her two children, a male child aged about five years and a female child aged about three and a half years. The custody of both the children admittedly is with the respondent No. 9. It is also an admitted fact that the brunt of the death of a person is borne first by the spouse and children especially who are dependent upon the deceased, more so when the spouse is a lady and is a home maker and without any ostensible source of income. The degree of difficulty which can be faced by such a widow with two small children as in this case can be incomprehensibly large and if timely support is not provided, it can invariably lead to destitution and vagrancy of the family. It is precisely for that reason that various states and autonomous bodies have framed rules for compassionate appointment to prevent a situation where the family of the deceased is left to fend for themselves and, therefore, preventing them from getting into a state of penury and starvation. 12. It is precisely for that reason that various states and autonomous bodies have framed rules for compassionate appointment to prevent a situation where the family of the deceased is left to fend for themselves and, therefore, preventing them from getting into a state of penury and starvation. 12. It is pertinent to mention that in most of the cases the rules specifically provide that preference shall be given to the widow and only in case of the her unwillingness to seek such an appointment or her ineligibility as regards qualification, do the other categories consisting the family can be considered for such an appointment which may include a son, a daughter, adopted son or adopted daughter or a dependent brother or sister. A brother or a sister has been included in the category, who can be considered for appointment only if they were dependent on the deceased. It, therefore, presupposes that the parents of the deceased were not possessed of means either through employment or other sources as could maintain and sustain a family including such brother or sister of the deceased. It certainly will not suffice to make a bald claim that the brother as in this case the petitioner, was dependent on the deceased. For that a plausible basis ought to have been pleaded and established. 13. In the present case, it can be seen that the petitioner claims that he was dependent upon the deceased. As to how the father of the petitioner was unable to provide for the petitioner is not stated and the silence is quite conspicuous. The reason is not difficult to comprehend and fathom. A reference to one of the documents placed on record by the petitioner, which is in the shape of a ration card would show that the father of the petitioner, Madan Lal Sharma in whose name the same has been issued, is in Government service and has an income of Rs. 20,000/-per month. This card was issued as late as in October, 2020. Now if the father of the petitioner is in Government service and was earning the amount reflected in the said document, then it is not understandable as to how the petitioner could claim to be dependent on his deceased brother. 14. For purposes of reference it is deemed appropriate to refer to the scheme of Compassionate Appointment framed by the Hon’ble Supreme Court. 14. For purposes of reference it is deemed appropriate to refer to the scheme of Compassionate Appointment framed by the Hon’ble Supreme Court. According to this scheme, a dependent family member of a Court Officer/ Servant dying in harness can be considered for compassionate appointment. ‘Dependent family members’ are categorized as (a) spouse or (b) son (including adopted son) or (c) daughter (including adopted daughter) & (d) brother or sister in the case of unmarried Court Officer/Servant. What is important to note is that according to Clause VI of the Scheme, preference is to be given to the widow and only if the widow is not interested and more than one family member apply, the one recommended by the widow is to be considered for appointment. 15. The purpose of referring to the Scheme framed by the Hon’ble Supreme Court is only for purposes of an analogy to highlight the point that insofar as the Scheme of Compassionate Appointment is concerned, preference is given to the widow which only supports the logic that it is the immediate family, i.e. the spouse and thereafter the children who are considered most affected by the death in harness of the deceased employee. Even when the Scheme supra specifically prescribes a preference, where as in the scheme prescribed by SRO-43 no such preference is prescribed, yet it can be seen that even in the order of preference the spouse of the deceased figures first. On that logic, I have no hesitation to hold that it is the respondent No. 9, who would have the first preference in seeking employment in the presence case under SRO-43. Not only this, there is no case made out by the petitioner to seek a mandamus for directing the official respondents to issue a Dependent Certificate in his favour, in view of the fact that the petitioner had concealed in the petition that he had a father who was living and in Government service and earning Rs. 20,000/-per month and secondly for the reason that the petitioner has failed to satisfy this Court as to how inspite of a father who was earning, the petitioner could claim to be dependent on the deceased. 16. 20,000/-per month and secondly for the reason that the petitioner has failed to satisfy this Court as to how inspite of a father who was earning, the petitioner could claim to be dependent on the deceased. 16. A number of allegations have been made against the respondent No. 9, questioning her moral character, which, in my opinion, are not relevant at all for the purposes of invoking a right under SRO-43 by the respondent No. 9, especially when the marriage was admittedly surviving, notwithstanding that the parties initiated legal proceedings against each other under the Hindu Marriage Act, 1955 and the Protection of Women from Domestic Violence Act, 2005. 17. Insofar as the prayer of the petitioner for seeking a mandamus against the respondents for expediting the inquest proceedings and booking respondent No. 9 for abetting the suicide of the petitioner is concerned, in my opinion, no mandamus can be issued, directing the respondent to incriminate respondent No. 9, based upon the bald allegations made by the petitioner in the present petition. It would be open to the Investigating Agency to enquire and investigate into the matter and take necessary action as prescribed under law. 18. Be that as it may, the petition is found to be without any merit and is, accordingly, dismissed along with connected application.