Jammu & Kashmir High Court - Srinagar Bench
Mst. Azi vs State Of J&K Through on 9 August, 2024
Page |1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 311/2013
Reserved on: 01.08.2024
Pronounced on: 09.08.2024
Mst. Azi, Widow of Habib Wani
R/O Drung Khag Budgam.
...Petitioner(s)
Through: Ms. Masooda Jan, Advocate.
Vs.
1.State of J&K through
Commissioner cum Home Secretary,
Government of Jammu & Kashmir,
Civil Secretariat, Srinagar/Jammu.
2. Divisional Commissioner, Kashmir, Srinagar.
3. Deputy Commissioner, Budgam, Kashmir.
...Respondent(s)
Through: Mr. Bikramdeep Singh, Dy.AG.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. The instant petition seems to be the 2nd round of litigation initiated by the petitioner herein. The petitioner had earlier preferred the writ petition SWP No. 1132/2007, pleading therein that her husband got physically disabled in a bomb blast and, accordingly, she approached District Development Commissioner Budgam, for the relief and compassionate appointment, whereupon she was appointed as Sweeper by respondent no. 3 (Deputy Commissioner Budgam) on daily wage basis; that during the course of her engagement, she had also performed the election duty in the year Page |2 1996, on the assurance by the respondents that her services would be regularized.
2. The main grievance of the petitioner in the earlier round of litigation was that despite assurances extended by the respondents, her services were not regularized, hence, she filed the writ petition SWP No. 1132/2007. The said writ petition was disposed of vide judgment dated 03.10.2007, with a direction to the respondents to accord consideration to the case of the petitioner for regularizing her services under rules. Besides, it was directed that the unpaid wages, which are due to her be also paid to her. The judgment passed in SWP No. 1132/2007, assumed finality as the respondents did not challenge the same and that the respondents, as such, were under legal obligation qua the petitioner to have implemented the order in letter and spirit and to accord consideration to the case of the petitioner for regularization of her services. The said order passed by this Court, however, was not implemented in letter and spirit, and as consequence of which the petitioner was constrained to file Contempt Petition before this Court, which was registered as 156/2009. Respondents had filed their statement of facts to the aforesaid Contempt Petition, wherein, respondents admitted that the petitioner was working as Sweeper in Typing Training Centre Khag, on consolidated wages of Rs. 750/- per month, that since, the said Typing Training Centre had been closed after November 1997, the term of all engagees viz. Instructors, Helpers and Sweepers stood expired with the closure of the Centre/Scheme. The respondents have further stated in their statement of facts that the Page |3 petitioner has already been paid wages for the period she has already worked. The said Contempt Petition was disposed of vide order dated 19.05.2009.
3. The petitioner filed the present writ petition asserting therein that the husband of the petitioner had lost both of his hands in a bomb blast while working in the field as Labourer. That, the respondents, as a consequence of which, engaged the petitioner as Sweeper without sanctioning compensation as per law. That, the petitioner's husband had died on 01.02.2011, leaving behind the petitioner as widow and other dependents/ family members. That, there being no bread earner in the family after the death of the husband, petitioner was provided employment by the respondents in lieu of compensation and engaged her as Sweeper on daily wage basis in the year 1995 in Typing Center Khag, against the available vacancy.
4. It is the specific case of the petitioner that she had performed election duty also in the year 1996 on the assurance by respondents that her services would be regularized. The petitioner has pleaded that instead of regularizing her services in conformity with the direction passed by this Court vide order dated 03.10.2007 passed in SWP no. 1132/2007, her services were terminated without any rhyme or reason.
5. Respondents had not chosen to file reply despite that they had been duly served and were represented by their counsel, as such, the petition was admitted on 20.05.2014. Respondents, even, thereafter had not filed any pleadings and on being directed by the court, Mr. Page |4 Syed Hamid, the then Deputy Commissioner Budgam, appeared in the Court on 01.09.2022 and assured the Court that he will explore every possibility by giving positive response with respect to the engagement of the petitioner as Sweeper on compassionate grounds, subsequently her regularization and will take every step to implement the order passed by this Court in its letter and spirit.
6. This Court observing that no counter affidavit was filed despite number of opportunities granted in this behalf, as such, the averments which have been pleaded, had not been rebutted or controverted under these circumstances, stands admitted, and the respondent- Deputy Commissioner Budgam was directed to implement the directions passed by this Court dated 03.10.2007 with regard to regularizing the services of the petitioner under rules; besides releasing her unpaid wages, as husband of the petitioner, who got injured in the bomb blast and later on succumbed to injuries on 01.02.2011.
7. Respondent no. 3-Deputy Commissioner Budgam, filed compliance report on 22.09.2022, asserting therein that the petitioner namely Azi, was engaged as Sweeper in Typing Training Centre Khag, under the 'Training of Rural Youth for Self Employment (TRYSEM) Scheme' on consolidated wages of Rs.750/- per month as per the orders of Block Development Officer Narbal vide Order No. KB/1075-76 dated 16.01.1995. That, the said Typing Training Centre was closed after November 1997, as a result of which the term of all the engagees as Instructors/Helpers/Sweepers including the petitioner came to an end with the closure of the Page |5 Centre/Scheme, and that the petitioner was paid wages for the period she had worked, except for the months of October and November 1997, for the reason that the wages were not released by the Government.
8. It has been further stated that the petitioner subsequently filed an application under the Payment of Wages Act before the court of Assistant Labour Commissioner Budgam, which passed an Award in favour of the petitioner to the tune of Rs. 27898/- vide order dated: 30-11-1998 and this amount was also released in her favour. It was further pleaded by the respondents that the petitioner in SWP No. 1132/2007 had sought regularization and this Court vide order dated 03.10.2007 had ordered to consider the petitioner's case and that pursuant to that direction a report was sought from the Assistant Commissioner (Dev.) Budgam, who vide his communication dated 19.05.2014 reported that the petitioner was not engaged as daily wager but was working as Sweeper in the Typing Training Centre for a brief spell of time upto the closure of the Scheme/Centre and the term of the petitioner with all other engaged persons came to an end with the closure of the Scheme in the month of November 1997.
9. It was further asserted that in compliance to the order dated 02.09.2022 passed by this Court directing respondent No.3-Deputy Commissioner Budgam, to file compliance report within three weeks explaining steps taken in furtherance of the direction passed by this Court vide order dated 03.19.2007 in SWP No. 1132/2007. That, the case of the petitioner was taken up for consideration in Page |6 compliance to the directions passed by this Court vide order dated 02.09.2022 and a report was sought from Assistant Commissioner Development Budgam, regarding the subject matter, who vide his No. ACD/Bud/4025-27 dated 19-09-2022, reported that the petitioner was not eligible for regularization, as she was temporarily engaged under the Scheme, which was not operational as of now. It was further asserted that every possibility was explored to engage the petitioner as Sweeper but she could not be engaged, as a complete ban was imposed on engagement of Casual / Seasonal / Adhoc / Consolidated / Contractual / Need Based / Daily Rated Workers, etc., in terms of the General Administrative Department Circular No. 30-GAD of 2019 dated 24.05.2019,
10. The respondents have also submitted that the case of the petitioner does not fit well within the criteria as laid down in Jammu and Kashmir (Compassionate Appointment) Rules 1994 (SRO-43), and that the respondent-Deputy Commissioner had taken up the matter with the Commissioner/Secretary to Government, Rural Development Department J&K vide communication No.DCB/ARA/CC/22/155 dated 21.09.2022, for soliciting necessary direction in the instant case.
11. Respondent No.3 again filed another compliance report in compliance to order dated 03.10.2023, stating therein that as per the police report dated 12.09.2023, the petitioner's husband got injured in the year 1987 in a bomb blast while digging of the land, whereas the death certificate reveals that the petitioner's husband died at his residence in the year 2011, as such, it was evident that the death and Page |7 the accident are not co-related, therefore, petitioner is not eligible for compassionate appointment in terms of SRO -43 or any other relief as claimed.
12. Learned counsel for the petitioner has argued that the engagement of the petitioner as Sweeper in the year 1995 was against the consideration that her husband had suffered disability as both of his hands had been amputated, as a result of the injuries, received in a bomb blast and that her husband, as a result of these injuries, had died in the year 2011. Learned counsel further argued that since the respondents had been directed by this Court vide order dated 03.10.2007 passed in SWP No. 1132/2007, to consider the petitioner's regularization as Sweeper, as she had performed election duty in the year 1996, as such, the respondents were under obligation to regularize her services, however, the respondents had disengaged her from her services and had not complied with the court order, as such, the petitioner was again compelled to file the instant petition.
13. Petitioner, through the medium of the instant petition, has prayed for the following reliefs :-
(i) commanding the respondents to release a lump sum amount of Rupees Twenty Lacs in favour of petitioner who lost her husband, a bread earner, due to injuries of bomb blast while working in the field;
(ii) commanding the respondents to extend the benefit of SRO 43 to the petitioner, as the petitioner was not adjusted on the post on which she was engaged in lieu of any compensation;
Page |8
(iii) commanding the respondents to pay the petitioner a special package of Rupees Five Lacs (Rs. 5.00 lacs) for mental agony, wastage of time, litigation and inconvenience caused to petitioner by the omission and commission of respondents.
14. Learned counsel for the petitioner further argued that the petitioner had been appointed on daily wages/consolidated payment of Rs.750/- per month in the Type Training Centre Khag and having regard to the fact that she had performed election duty in the year 1996, she was entitled to regularization against the post of Sweeper and the respondents could not have taken the stand that with the closure of the Typing Centre/Scheme, the term of all the engagees including the petitioner came to an end, and alleged that the respondents despite orders from this Court in the earlier writ petition for consideration of regularization of the petitioner, had not considered her, as the respondents could have adjusted her after regularization in some other department even if the Scheme, for which she had been appointed, had expired.
15. Learned counsel for the petitioner has also argued that the death of the husband of the petitioner was also as a result of injuries received by him in a bomb blast and the Government of J&K in terms of SRO-43 was under obligation to provide employment to one of the family members for the death of deceased in the said accident, and the petitioner being the wife of the deceased was entitled to be given the Government job. She further argued that the respondents had also not paid any compensation for the death of the deceased or for his disability suffered in the incident of a bomb blast.
Page |9
16. Learned counsel for the respondents, on the other hand, has argued that the engagement of the petitioner as Sweeper by the Block Development Officer Khag as desired by District Development Officer Budgam was not on the basis of any compassionate engagement but she had been temporarily engaged as Sweeper in the Typing Training Centre, set up for the development of the tribal women programme at Khag, therefore, the engagement of the petitioner and further staff engaged on consolidated basis was co- terminus with the Centre under the Scheme. Since the Centre was closed in November 1997, therefore, whole of the staff engaged including the petitioner was disengaged and there was no question of their regularization. He has further argued that the petitioner's husband though had got injured in a bomb blast in the year 1987 but had died after a period of 25 years after that incident i.e., in the year 2011, therefore, the death of the deceased cannot be related to the injuries after quite long time, and the deceased may have died of natural death, as such, the petitioner cannot seek compassionate appointment under SRO-43 for the death of her husband.
17. The contention of learned counsel for the petitioner is twofold; one that the petitioner having been appointed as daily wager was entitled to be regularized for the reason that she had performed election duty in the year 1996, however, the petitioner has failed to place on record any document substantiating his claim as to whether she had performed election duty, and if so what was the rule or guidelines framed by the Government to entitle her to said regularization. The second contention with regard to compassionate P a g e | 10 appointment is also misplaced in view of the reason that the petitioner's husband, for whose death the compassionate appointment is sought to be taken place in the year 2011, allegedly as a result of the injuries received by him in a bomb blast in the year 1987. There being no evidence on file to suggest that the death of the deceased had resulted from the injuries received by him in the year 1987, and thus, his death after 25 years in the year 2011, by no stretch of imagination can be stated to have been taken place due to injuries having been received in the year 1987.
18. Rule 2 (iii) of SRO-43 [The J&K (Compassionate Appointment) Rules 1994], which is relevant on the subject, provides that a person is entitled to the compassionate appointment, who is a family member of 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 & 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. Therefore, in view of this clause, the petitioner has failed to substantiate as to how her husband had died in the militancy related action so as to entitle her to the compassionate appointment.
19. Examined from any angle, this Court is of the considered opinion that the petitioner has failed to make out a case to seek her regularization as Sweeper, having performed election duties in the year 1996, or that she was entitled to be appointed on P a g e | 11 compassionate grounds in terms of Jammu and Kashmir (Compassionate Appointment) Rules 1994- (SRO-43).
20. On a specific query as to whether the petitioner's husband, who had lost both of his upper limbs having been amputated in view of the injuries sustained in a bomb blast, not been compensated in any manner. It was fairly admitted by the learned Dy.AG, that no compensation had been paid to the petitioner.
21.The husband of the petitioner during his life-time for his permanent disablement, as both of his arms had been amputated due to injuries received in a bomb blast, had neither been paid any compensation nor after his death any of his family member was compensated in any manner, whatsoever. Having regard to the hardships faced by the husband of the petitioner during his life-time for his permanent disablement for over two decades for having lost both of his upper limbs and also the sufferings faced by his family due to loss of income of their sole bread earner, who had been physically and functionally disabled to earn his livelihood, this Court is of the considered opinion that the family of the deceased-husband of the petitioner is to be compensated by the respondents.
22. Viewed thus, an amount of Rs.5.00 lacs (Rupees Five Lacs, only) on a guesstimate, as compensation for the disablement, suffered by the husband of the petitioner, is ordered to be paid to the petitioner- wife of the deceased, for hardships of her husband during his life- time, suffered by him and also his family members including the petitioner-wife of the deceased, for having lost the income of the sole bread earner of the family. Respondent- Deputy Commissioner P a g e | 12 Budgam, is commanded to pay the afore-stated compensation amount to the petitioner-wife of the deceased, after proper verification and identification, within a period of six weeks from the date copy of this judgment is served upon him.
23. Writ petition is, accordingly, disposed of, in the above terms.
( M. A. CHOWDHARY ) JUDGE Srinagar 09.08.2024 Muzammil. Q Whether the order is reportable: Yes / No Muzamil Qadir 2024.08.12 12:33 I attest to the accuracy and integrity of this document