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2022 DIGILAW 307 (JK)

Gh. Ahmad Wani v. UT of J&K

2022-06-28

SANJEEV KUMAR

body2022
JUDGMENT : Sanjeev Kumar, J. 1. One Altaf Ahmad Wani, who was serving as a constable in Jammu and Kashmir Police died in harness on 25.09.2013 in a militant attack leaving behind his wife, namely, Shagufta Nazir, respondent No. 5 herein, parents and unmarried sister. The Government offered the respondent No. 5 appointment as teacher in the School Education Department on compassionate grounds in terms of J&K Compassionate Appointment Rules, 1994, issued vide SRO 43 of 1994. The petitioners herein i.e. parents and sister of the deceased Government employee felt aggrieved by the conduct of respondent No. 5, who, as per the petitioners, after obtaining appointment on compassionate grounds neglected to take care of other dependents of the deceased employee i.e. the petitioners herein. 2. The petitioners filed SWP No. 426/2016 and sought inter alia a direction to the official respondents to appoint one among the eligible petitioners on compassionate grounds under SRO 43 of 1994. The respondent No. 5 appeared in the petition, but instead of contesting the petition on merits, conceded to pay 50% of her salary and pension of the deceased to the petitioners. A compromise deed in this regard was executed between the petitioners of one part and respondent No. 5 of the other part on 11.07.2017. The respondent No. 5 voluntarily undertook to share fifty percent of her monthly salary and fifty percent of the pension and other post-retiral benefits with the petitioners. 3. On the basis of this compromise arrived at in the light of statement of the respondent No. 5 recorded before the Registrar Judicial of this Court, SWP No. 426/2016 was disposed of on 02.08.2017. The parties, as this court is given to understand, adhered to the aforesaid compromise for some time till respondent No. 5 contracted second marriage/remarried. As a result of remarriage, the respondent No. 5 lost her right to family pension. The family pension, which the respondent No. 5 was receiving, came to be released in favour of the parents of the deceased i.e. petitioner Nos. 1 and 2. It is also brought on record that not only the family pension is being paid to the petitioners but the petitioners were also beneficiaries of pay arrears on account of 7th Pay Commission Revision to the extent of approximately Rs. 10 lacs. 1 and 2. It is also brought on record that not only the family pension is being paid to the petitioners but the petitioners were also beneficiaries of pay arrears on account of 7th Pay Commission Revision to the extent of approximately Rs. 10 lacs. With this change in circumstances, the respondent No. 5 stopped paying 50 percent of her monthly salary to the petitioners. 4. Feeling aggrieved, the petitioners have filed the instant petition seeking inter alia a writ of Mandamus to direct respondent Nos. 3 and 4 to recover with arrears the 50 per cent of the monthly salary from the respondent No. 5. It appears that pursuant to the interim directions, the respondent Nos. 3 and 4 have been deducting fifty percent of the salary of the respondent No. 5 and releasing it in favour of the petitioners. The petitioners have prayed for 50% of the salary on two grounds:- i. That the compassionate appointment offered by the Government to the respondent No. 5 is for the benefit of all dependents of the deceased employee, and therefore, respondent No. 5 is under a legal obligation to take care of the other dependents of the deceased employee. ii. That respondent No. 5 is bound by the undertaking given to the Government as also the compromise deed executed on 11.07.2017, in the light whereof SWP No.426/2016 was disposed of vide order dated 02.08.2017. 5. Learned counsel for the petitioners relying upon several judgments of this Court, would vehemently contend that the respondent No. 5 having remarried has lost her right to the compassionate appointment, and therefore, the other dependents are to be provided the compassionate appointment so as to enable them to tide over the financial crises befallen on them due to untimely death of the deceased employee. He would argue that having regard to the object of compassionate appointment, one of the dependents appointed on compensate grounds is legally bound to maintain other dependents of the deceased Government employee. The obligation to maintain other dependents of the deceased employee is inherent in a compassionate appointment. 6. He would argue that having regard to the object of compassionate appointment, one of the dependents appointed on compensate grounds is legally bound to maintain other dependents of the deceased Government employee. The obligation to maintain other dependents of the deceased employee is inherent in a compassionate appointment. 6. He would further submit that the respondent No. 5 cannot be permitted to wriggle out of her solemn undertaking made before the Government at the time of seeking appointment as well as before this Court while recording compromise on 11.07.2017, in the light whereof SWP No. 426/2016 filed by the petitioners was disposed of by this Court on 02.08.2017. With regard to the family pension, the learned counsel would contend that respondent No. 5 after getting remarried lost that right and the other dependents i.e. petitioners, the parents of the deceased Government employee became statutorily entitled to such pension. He would, therefore, conclude his arguments by saying that while the petitioners are entitled to get the family pension of their deceased son, the respondent No. 5 cannot escape from her obligation to maintain them being the dependents of the deceased. 7. Per contra, learned counsel for the respondent No. 5 submits that the undertaking given by respondent No. 5 to the Government at the time of seeking compassionate appointment and the subsequent compromise entered into between the petitioners and respondent No. 5 with regard to payment of 50% of the monthly salary and other post-retiral benefits of the deceased, has lost its significance and binding character because of change in circumstances. He would submit that earlier the respondent No. 5 was getting monthly salary on account of her appointment on compassionate grounds as also the family pension and other post-retiral benefits but with respondent No. 5 marrying again, the right to receive pension and other retiral benefits has been lost in favour of the petitioners. The petitioners, who are not only receiving monthly pension of the deceased Government employee, but they have also received huge amount of arrears of pension on account of 7th Pay Commission Revision, and therefore, are no more dependent on respondent No. 5. 8. The petitioners, who are not only receiving monthly pension of the deceased Government employee, but they have also received huge amount of arrears of pension on account of 7th Pay Commission Revision, and therefore, are no more dependent on respondent No. 5. 8. Having heard learned counsel for parties and perused the material on record, I am of the considered view that the ends of justice would meet if the petitioners are allowed to receive and retain the family pension and other post-retiral benefits and the respondent No. 5 is allowed to receive monthly salary for the services she is rendering in the School Education Department as a teacher having been so appointed on compassionate grounds in terms of SRO 43 of 1994. 9. Compassionate appointments in the Government service of the Union Territory of Jammu and Kashmir is governed by the Jammu and Kashmir Compassionate Appointment Rules, 1994 (the Rules of 1994). The Rules of 1994 are statutory in character having been framed by the Governor under section 124 of the Constitution of Jammu and Kashmir and saved by the Jammu and Kashmir Reorganization Act, 2019. Obviously, the rules of 1994 are by way of exception to the general law relating to appointment in public service. Needless to say that all appointments to the Government service are required to be made in a just, fair and transparent manner by following a process which is in consonance with Article 14 and 16 of the Constitution of India. There ought to be a public notice calling upon all eligible candidates to apply; a fair and transparent process of selection where all eligible candidates are given a fair and equal opportunity to participate and compete. The compassionate appointment is an exception to this general principle culled out to provide sustenance to the family of the deceased Government employee dying in harness to enable it to tide over a sudden financial crisis. Compassionate appointment scheme is a social welfare legislation and based upon a valid classification having nexus with the object sought to be achieved, and therefore, does not fall foul of Article 14 of the Constitution of India. 10. Compassionate appointment scheme is a social welfare legislation and based upon a valid classification having nexus with the object sought to be achieved, and therefore, does not fall foul of Article 14 of the Constitution of India. 10. As is apparent from the reading of rule 2 of the Rules of 1994, it applies to compassionate appointment of a person who is a family member of a Government employee, who dies in harness or who dies as a result of militancy related action etc. Section 2 sub-section 5(d) defines 'family member' to be spouse, son, daughter, sister or brother or adopted son or daughter (dependent on the deceased) and shall in respect of cases covered under clause 3 i.e. a civilian who dies as a result of militancy related action etc., also means father and mother for the purpose of payment of cash compensation only even if they are not dependent on the deceased. For facility of reference, rule 2 of the Rules of 1994 is produced hereunder:- "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 as a result of law and order situation and is not found directly involved in the actual violence 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; (iv) a member of the Armed Forces not above the rank of Junior Commissioned Officer or a member of Para-military Forces of equivalent rank who is a permanent resident of State and is killed while discharging the duties in connection 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. 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 under section 6 of the Constitution of Jammu and Kashmir; (d) "Family Member" means Spouse, son, daughter, sister or brother or adopted son/daughter (in respect of communities in whose case adoptions are permissible under the Law) dependent on the deceased and shall in respect of the cases covered under clause (iii) also mean father and mother for the purpose of payment of cash compensation only, even if they are not dependent on the deceased". 11. From reading of the definition of family member dependent on the deceased, it is abundantly clear that in a case of a Government employee who dies in harness or who dies as a result of militancy related action, the parents are not the family members dependent on the deceased for the purposes of claiming compassionate appointments. However, sister dependent on the deceased is one of the dependents of the deceased employee indicated in the definition of family member. In terms of rule 3 of the Rules of 1994, the compassionate appointment is to be offered to an eligible family member of the deceased Government employee. Rule 3(1) of the Rules of 1994 is also set out below. 3. Appointment under these rules:-(1) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Government, 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-IV post having qualification above Matriculation or to a Class-IV if the candidate has read upto Matric: Provided that the applicant is eligible and qualified or acquires eligibility and qualification within a period of six months from the death of the deceased person specified in rule 2. 12. From reading of clause (d) of the explanation appended to rule 2 of Rules of 1994 along with rule 3, it is abundantly clear that for the purpose of compassionate appointment, no person other than spouse, son, daughter, sister or brother or adopted son/daughter are dependent on the deceased. 12. From reading of clause (d) of the explanation appended to rule 2 of Rules of 1994 along with rule 3, it is abundantly clear that for the purpose of compassionate appointment, no person other than spouse, son, daughter, sister or brother or adopted son/daughter are dependent on the deceased. The parents of the deceased are excluded where the compassionate appointment is sought in respect of a Government employee dying in harness or dying as a result of militancy related action as indicated in clause (i) and (ii) of rule 2 of the Rules of 1994. Viewed thus, I am in agreement with learned counsel for the respondent No. 5 that with the change in circumstances i.e. stoppage of family pension to the respondent No. 5 and its payment in favour of the petitioners along with arrears to the tune of Rs. Ten lakhs approximately, has made the petitioners self-sufficient and not dependent on the salary of respondent No. 5. Respondent No. 5 is serving as a teacher in the School Education Department, and therefore, receives her salary for rendering the services to the Department. Obviously, the petitioners or any one of them are not contributing in any manner to the rendering of those services. It is true that respondent No. 5 got the appointment on compassionate grounds in lieu of her husband who was serving as Constable in the J&K Police, but she earns her monthly salary only after she renders services to the Government. Staking claim on 50 percent of the monthly salary by the petitioners is, therefore, neither equitable nor justified, more particularly, when the petitioners are receiving the entire family pension and have also received arrears to the tune of more than Rs. 10 lacs. 13. Admittedly, the petitioners have not shared those arrears of the pension which they have received nor are they sharing the family pension with the respondent No. 5. Otherwise also, in terms of SRO 43 of 1994, no obligation is cast upon the compassionate appointee to pay a particular sum to the other dependents, though I tend to believe and agree that it is inherent in the compassionate appointment that such appointee is obliged to take care of other dependents. However, as taken note of hereinabove, the Rules of 1994 clearly define the dependent family members of the deceased Government employee. However, as taken note of hereinabove, the Rules of 1994 clearly define the dependent family members of the deceased Government employee. The parents are excluded from being the dependent family members of the deceased. They are, however, being included in the definition of 'family member' only for the purposes of payment of cash compensation in respect of a civilian who dies as a result of militancy related action or other such situation enumerated in clause (iii) of rule 2 of the Rules of 1994. 14. Petitioner No. 3, a divorcee aged 35 years, is sister of the deceased Government employee, and going by the definition of family given in Rules of 1994, she can claim to be dependent on the deceased but her being dependent on the deceased, is a question of fact to be determined by the competent authority. As per the pleadings of the petitioners, petitioner No. 3 is staying in her parental house along with petitioner Nos. 1 and 2. As noticed above, petitioner Nos. 1 and 2 have got a good sum in the shape of arrears of pension which were released as a result of 7th Pay Commission Revision and they are also getting regular monthly family pension of the deceased Government employee and, therefore, well within their means to take care of petitioner No. 3. 15. In view of the changed circumstances noticed above, I am in agreement with learned counsel for the respondent No. 5 that the compromise which was entered into between the petitioners and respondent No. 5 on 11.07.2015 in the light of whereof SWP No. 426/2016, was disposed of, has lost its significance and binding character. The petitioners cannot be permitted to be unjustly enriched by deriving benefit from two sources. Allowing the present arrangement where under 50% of the salary of respondent No. 5 is being deducted and paid to the petitioners is fraught with unsavory consequences and an invitation to the parties to uncalled for and avoidable litigation. The petitioners must remain contented with the post-retiral benefits which they have received and are receiving regularly every month. 16. Judgments cited by Mr. Thakur, learned counsel appearing for the petitioners have been rendered in different contexts. The petitioners must remain contented with the post-retiral benefits which they have received and are receiving regularly every month. 16. Judgments cited by Mr. Thakur, learned counsel appearing for the petitioners have been rendered in different contexts. The definition of family as amended in the year 2014 and rule 3 of the Rules of 1994 specifically providing for appointment on compassionate grounds to the dependent family members, is not considered in any of the judgments including Yasmeena Begum v. Deputy Commissioner & Anr. 2022 (3) JKJ 405 [HC]. The Judgment of Hon'ble the Supreme Court of India in the case of Premlata Acharya v. Suman Acharya & Ors. 2018 (14) SCC 655 , deals with obligation of the compassionate appointee to take care of the children of the deceased. The judgment of the Allahabad High Court relied upon by the learned counsel for the petitioners Santoshi v. State of U.P. 2020 (3) ALJ 674 deals with compassionate appointment rules prevalent in the State of U.P., which are materially different from the Rules of 1994. Compassionate appointment under the U.P. Rules is made conditionally and the person obtaining such appointment is ought to maintain throughout the family members of the deceased Government servant. These judgments are clearly distinguishable and not clearly applicable to the case in hand. We have different set of rules and the position emerging there from is already indicated hereinabove. 17. For the foregoing reasons, I find no merit in this petition and the same is, accordingly, dismissed. 18. The petitioners are held entitled to family pension as also other post-retiral benefits, which they have received or they would receive in future. This is also the position obtaining from the rules governing family pension of the deceased Government employee of the Union Territory of Jammu & Kashmir. The respondent No. 5, who has been appointed as teacher under compassionate grounds in the School Education Department, would be exclusively entitled to the monthly salary and other services benefits arising out of her appointment without there being any obligation to maintain the petitioners.