Jammu & Kashmir High Court - Srinagar Bench
Mst. Atika W/O Abdul Rashid Mir D/O Ali ... vs State Of Jk Th. Commr/Secy Gad on 29 May, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 08 of 2013 CMP No. 13 of 2013 Mst. Atika W/o Abdul Rashid Mir D/o Ali Mohammad Wani R/o Safapora, Ganderbal at present Sumbal Sonawari, Kashmir. Petitioner State of JK th. Commr/Secy GAD, Civil Secretariat, Srinagar/Jammu. Deputy Commissioner Ganderbal. Tehsildar Sonawari. Mst. Zeba W/o Mohammad Rajab Mir R/o Safapora Tehsil Lar District Ganderbal, Kashmir. Mohammad Rajab Mir S/o Mohammad Subhan R/o Safapora Tehsil Lar District Ganderbal. Respondents !Mr. Adil Asimi, Advocate ^Mr. B.A. Dar, AAG Mr. M. A. Beigh, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Date: 29/05/2015 : J U D G M E N T :
1. This writ petition is filed praying for quashing the order dated 11.12.2012 and for direction to respondent no. 1 to appoint the petitioner on compassionate grounds under SRO 43 of 1994.
2. It is the case of the petitioner that she is the permanent resident of J&K State and a citizen of India. Her husband namely Abdul Rashid Mir lost his life in bomb-blast exploded at Safapora on 12.08.2001 and the petitioner became widow within two years of her marriage. The petitioner submitted an application seeking compassionate appointment within the prescribed time. Petitioner was asked by respondent no. 2 to bring dependency certificate. The Assistant Commissioner, Ganderbal while issuing a dependency certificate sought report from the Tehsildar concerned, who in his report mentioned that father of the deceased is engaged with business and shop-keeping and brother and sister of deceased are married and brother being Government employee, the petitioner is the only destitute and dependable on the deceased.
3. Respondent no. 2 in order to appoint the petitioner has also sought report from S.P.Bandipora regarding the character and antecedents of petitioner. S.P. Bandipora assessed the character and antecedents of the petitioner and certified that she is not involved in any subversive activities.
4. Respondent nos. 4 and 5 filed a writ petition bearing OWP No. 1112/2009 and prayed for a declaration declaring the definition of word family provided in SRO 43 of 1994 as ultra vires to constitution. In view of the pendency of the said writ petition, no further action was taken. The said writ petition was dismissed in default on 21.05.2015.
5. An order was passed on 11.12.2012 stating that as per SRO 199 dated 04.07.2008 sanction is accorded to grant of Rs. 4.00 lacs as cash compensation in favour of dependents of the deceased in lieu of compassionate appointment under SRO 43 of 1994. The petitioner is aggrieved with the said order and has accordingly challenged the same in this writ petition.
6. The writ petition was filed in the year 2013. Notice was issued and respondent nos. 4 and 5 have filed objections stating that in terms of policy, instead of compassionate appointment, cash compensation was ordered and the petitioner cannot compel the Government to issue compassionate appointment as there was no vacancy available and due to which new policy was adopted.
7. Learned counsel for petitioner has relied on Rule 3 of Jammu and Kashmir Compassionate Appointment Rules 1994 and submits that as per proviso to Rule 3 as amended in SRO 199 dated 04.07.2008, anyone of the family member of the deceased who fulfills eligibility criteria can seek compassionate appointment or choose cash compensation at the option of the person who is seeking the benefit. Learned counsel also relied on the judgment of the Division Bench of this Court reported in (2013) 2 JKJ 135 wherein the Division Bench held that the claim of the petitioner is to be examined at the anvil of the rules/policy in vogue at the time of death in harness of a Government servant on whom such person claims to have been dependent.
8. Rule 3 of the Jammu and Kashmir Compassionate Appointment Rules 1994 as amended by SRO 199 dated 4.07.2008 reads as under:-
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 lower 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 the 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].
9. Learned counsel for the petitioner submits that as per proviso to Rule 3, option is to be given to anyone of the family members either to choose compassionate appointment or cash compensation.
10. Since the petitioner is interested in seeking compassionate appointment, the respondents cannot insist that she is entitled to receive lump-sum compensation and not compassionate appointment.
11. In such circumstances, this writ petition is allowed with a direction to official respondents to give compassionate appointment to the petitioner within a period of six weeks from the date of receipt of a copy of this order in lieu of compensation already sanctioned but not paid.
(N. Paul Vasanthakumar) Chief Justice Srinagar 29th May 2015 Altaf