Jammu & Kashmir High Court - Srinagar Bench
Rehana Begum & Anr vs Union Of India & Ors. ---Respondent(S) on 25 November, 2019
Bench: Chief Justice, Sanjeev Kumar
Serial No. 4
Advance List
IN THE HIGH COURT OF JAMMU AND KASHMIR
At SRINAGAR
LPASW No. 150/2018
Rehana Begum & Anr. ---Petitioner/Appellant(s)
Through: Mr. Sofi Manzoor, Adv.
V/s
Union of India & Ors. ---Respondent(s)
Through: Mr. Satinder Singh, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
25.11.2019
1. The instant appeal assails the judgment dated 8 th September 2016 passed by the learned Single Judge allowing SWP No. 1163/2004.
2. The facts giving rise to the instant appeal are within a narrow compass and to the extent necessary are briefly noted hereafter.
3. The appellant No. 1 Rehana Begum before us was married to Abdul Salam Sheikh who was the son of Mohammad Shaban Sheikh (Appellant No.2). It appears that in an incident of firing which occurred on 8th July 2003 by some miscreants, Abdul Salam Sheikh was fatally injured and thereafter died leaving behind his widow, the appellant No. 1, an eight year old daughter and his father-the appellant No. 2 as his survivors. With regard to this incident, FIR 168 was registered under Section 338, 304 RPC by the Police Station Parimpora.
4. It appears that deceased Abdul Salam Sheikh was an employee of R&B (PWD) Department. The appellant No. 1 as a widow of the deceased employee applied for appointment under SRO 43 of 1994 dated 22 nd February 1994 being the J&K (Compassionate Appointment) Rules, 1994 which had been issued by the General Administration Department. Rule 2(i) of the said Rules applies to the compassionate appointment of a person who is a family member MOHAMMAD ALTAF NIMA 2019.11.28 10:44 I attest to the accuracy and integrity of this document LPASW No. 150/2018 Page 1 of 4 of, inter alia, a Government employee, who dies in harness other than due to militancy related action and whereas Rule 2 (ii), applies to a Government employee who dies as a result of militancy related action. The appointment which has been offered to a person has to be in consonance with Rule 3 of these rules which reads as follows:
"Rule 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 post 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 as prescribed under the relevant Recruitment Rules.
Provided that the applicant is eligible and qualified for such post or acquires such eligibility and qualification within a period of one year from the date of death of the deceased person specified in rule 2:
Provided further that no application for compassionate appointment under these rules shall be entertained after the expiry of one year from the date of death of the deceased person."
(2) Nothing in sub-rule (1) shall delegate from the powers of the Government in General Administration Department to appoint at its discretion a candidate to a higher post in the non-gazetted service if he/she is a family member of a deceased Government employee or a civilian killed in the militancy related action.
(3) Notwithstanding the provisions of the rules contained herein for compassionate appointment, the family members of the civilians killed in militancy related action as specified in clause
(iii) of rule 2 shall be entitled to a cash compensation in lieu of appointment in government service of an amount specified by the government which shall be payable in their favour in a manner to be notified by the government.
Provided that if any one among the family members of the deceased civilian fulfills the eligibility criteria prescribed under the aforesaid Rules for appointment into the government service or acquires such eligibility within one year from the date of death of the deceased person, then they shall have the option either to choose the government service or the cash compensation."
5. It is undisputed that the request of the appellant No. 1 for compassionate appointment was favourably considered and the Executive Engineer Construction (R&B) Division No. III, Srinagar issued a letter dated 23 rd MOHAMMAD ALTAF NIMA 2019.11.28 10:44 I attest to the accuracy and integrity of this document LPASW No. 150/2018 Page 2 of 4 February 2004 recommending the case of the appellant No. 1 to the District Development Commissioner for her appointment on compassionate grounds under SRO 43 on the post of Helper. As this recommendation of the job did not result in issuance of an order of appointment, the petitioner had filed SWP No. 1163/2004 inter alia seeking the following prayers:-
i) Writ of Mandamus, commanding the respondents State authorities to appoint petitioner No. One (petitioner No. 1) under SRO 43 of 1994 in place of her husband (Abdul Salam Sheikh ) as per offer given by the Executive Engineer Const. (R&B) Division No. IIIrd, Srinagar vide his letter No. 21274 dated 23.02.2004 to the address of Distt. Development Commissioner, Srinagar. (Annexure G) to the writ petition and further,
ii) Furthermore, by issuance of a Writ of Mandamus, commanding the Central Government authorities to pay the compensation amount of Rs. 20 lakhs to the petitioners for the death of their young bread earned namely Abdul Salam Sheikh husband of petitioner No. 1 and son of petitioner No. 2."
6. Apart from the claim of employment, the appellants have also pressed the claim of grant of monetary compensation to the tune of Rs. 20 lacs for the death of Abdul Salam Sheikh. It is contended that the award of the payment was recommended in favour of the appellants by the Executive Engineer Construction (R&B Division) by a letter dated 23rd February 2004 as well as Superintendent of Police City North Srinagar on 27th April 2004. The appellant before us have contended that so far as appointment under SRO 43 is concerned, the same was granted to only appellant No. 1 while the appellant No. 2 is living in financial penury in as much as his son has expired. The admitted fact before us is that during the pendency of the writ petition, the appellant No. 1 was offered appointment as Helper under the provisions of the J&K Compassionate Appointment Rules, 1994 which was duly accepted. This fact of the appellant No. 1 of having been duly appointed was not brought to the notice of the learned Single Judge who took up the matter for consideration on 8th September 2016, as a result by the impugned judgment, the learned Single Judge was pleased to direct the respondents to engage the petitioner as a Helper within a period of three weeks from the date of receipt of the copy of the order. However, the learned Single Judge has rejected the claim of the MOHAMMAD ALTAF NIMA 2019.11.28 10:44 I attest to the accuracy and integrity of this document LPASW No. 150/2018 Page 3 of 4 petitioner for grant of compensation in view of the fact that the relief seeking engagement on compassionate ground had been granted.
7. Learned counsel for the appellant has pressed the claim for award of the monetary compensation on the ground that Abdul Salam Sheikh has received injuries for the fault of BSF authorities. This is a question of fact which has not been admitted by the BSF authorities. The learned Single Judge has noted that Abdul Salam Sheikh received injuries at the hands of some unknown militants who fired from a Maruti vehicle. There is nothing before us on record or, in any case, there is no established fact that Abdul Salam Sheikh received injuries for the fault of officials of the BSF. Even if this is so, we are of the view that the appellants had the choice of pursuing the claim for award of compensation or to pursue the claim for compassionate appointment under the J&K (Compassionate Appointment) Rules 1994 or with SRO 43 of 1994.
8. In the instant case, the appellant No. 1 having been granted compassionate appointment, the claim for monetary compensation is not maintainable.
9. No ground for interference with the order of the learned Single Judge is made out.
10. The appeal is devoid of any merit and is hereby dismissed.
(SANJEEV KUMAR) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Srinagar
25.11.2019
Altaf
MOHAMMAD ALTAF NIMA
2019.11.28 10:44
I attest to the accuracy and
integrity of this document
LPASW No. 150/2018 Page 4 of 4