Jammu & Kashmir High Court - Srinagar Bench
Ut Of J&K & Others vs Sajad Ahmad Shah & Anr on 25 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 17.10.2024
Pronounced on: 25.10.2024
LPA No.111/2020
UT OF J&K & OTHERS ...APPELLANT(S)
Through: - Mr. Bikramdeep Singh, Dy. AG, with
Mr. Younis Hafiz, Assisting Counsel.
Vs.
SAJAD AHMAD SHAH & ANR. ...RESPONDENT(S)
Through:- Mr. Asif Ahmad Bhat, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Per Sanjeev Kumar 'J'
1) The instant appeal by Union Territory of Jammu and
Kashmir & others is directed against an order and
judgment dated 2nd December, 2019, passed by learned
Single Judge [Writ Court] of this Court in SWP
No.1542/2016 titled "Sajad Ahmad Shah and anr. vs.
State of J&K & Ors." whereby the Writ Court has allowed
the writ petition filed by the respondents and by a Writ of
Certiorari, quashed an order dated 27.06.2016 impugned
in the writ petition. The Writ Court has also directed the
appellants herein to release the service benefits viz. salary,
gratuity and other allied benefits that had accrued to the
deceased father of respondent No.1 from the year 1989 till
his death. There is also a direction by the Writ Court to
release the pensionery benefits in favour of respondent No.2
herein and a direction for considering the case of
respondent No.1 for appointment on compassionate
grounds.
2) Briefly stated, the facts leading to the filing of the
instant appeal are that father of respondent No.1 and son
of respondent No.2, namely, Habibullah Shah was in the
service of Power Development Department and was holding
the post of Lineman since 1st March, 1973. He continued to
perform his duties as a Lineman till November, 1989 when
he suddenly disappeared. The respondents lodged a
missing report with Police Station, Pattan, but his
whereabouts could not be traced. It was only on 24th
January, 2012, the dead body of Habibullah Shah was
recovered from Bus Stand, Jammu. Inquest proceedings
were initiated by the appellants under Section 174 of the
Criminal Procedure Code, which culminated in filing of the
final report concluding that the deceased was mentally
unsound and died a natural death on 24.01.2012 at
Jammu Bus Stand.
3) The respondents herein, being the legal heirs of the
deceased approached the appellants for release of service
benefits and settlement of pension etc. and also requested
for providing employment to respondent No.1 on
compassionate grounds. The said benefits were claimed by
the respondents on the premise that the deceased was an
employee of the Power Development Department who died
in harness. The deceased was due to retire in the year 2013.
When appellants did not respond, the respondents filed
SWP No.2328/2013, which was disposed of by the Writ
Court vide order and judgment dated 28.11.2013 by
directing the appellants to take decision on the claim of
respondent No.1 for appointment on compassionate
grounds. The matter was considered by the appellants and
vide communication No.CE/M&RE/Adm-II/13230/AS
dated 27.06.2016, the claim of respondent No.1 for
compassionate appointment, considered in terms of
judgment of the Writ Court, was rejected. It is this order of
rejection which was called in question by the respondents
in SWP No.1542/2016. Additionally, the respondents in
their writ petition also prayed for release of service benefits
including post retiral benefits.
4) The impugned order of consideration was challenged
by the respondents, primarily, on the ground that the
appellants have justified the order of consideration rejecting
the claim of the respondents by relying upon Regulation
113 of J&K Civil Service Regulations Vol.I, which on the
face of it was not applicable to the case of the respondents.
It was pleaded that Regulation 113 of CSR was applicable
only to a person who fails to join after five years continuous
absence and in the instant case, the deceased employee had
gone missing due to unsoundness of mind. It was, thus,
submitted before the Writ Court that in the given facts and
circumstances, the deceased was required to be treated as
on duty till his death. It was also projected before the Writ
Court that never before the death of the deceased any notice
was ever issued to the deceased for joining back the
services.
5) The writ petition was contested by the appellants. In
the reply affidavit filed by Superintending Engineer,
EM&RE Circle-II, Srinagar, Kashmir, it was stated that the
deceased remained unauthorizedly absent from duties for
more than two decades and, therefore, in terms of
Regulation 113 of J&K CSR Vol.I, he was deemed to be out
of service. It was submitted that since the deceased was not
in active service, therefore, it could not be said that he died
in harness giving right to respondent No.1 to seek
compassionate appointment under SRO 43 of 1994.
6) The Writ Court considered the rival contentions and
came to the conclusion that neither Regulation 113 of J&K
CSR Vol. I was attracted to the facts and circumstances of
the case nor were the services of the deceased ever
terminated by the appellants by following a due process of
law. The Writ Court agreed with the contentions of the
respondents and concluded that in the given facts and
circumstances, the deceased should be deemed to be in
service till his death and, therefore, the respondents, who
are his legal heirs, are entitled to all the service benefits
including appointment on compassionate grounds under
SRO 43 of 1994. With the above directions, the writ petition
filed by the respondents herein was disposed of vide order
and judgment impugned in this appeal.
7) Heard learned counsel for the parties and perused the
material on record.
8) Indisputably, deceased Habibullah Shah was a
regular government employee serving in Power
Development Department. As is claimed by the respondents
herein, the deceased went missing in November, 1989,
though the stand of the appellants herein is that the
deceased unauthorizedly absented from duties and was not
heard of for more than two decades. Without entering into
determination of this disputed question of fact, suffice it to
say that if the deceased was unauthorizedly absent since
November, 1989, what action was taken by the employer
(the appellants herein). Whether any notice was issued to
the deceased before his death calling upon him to join back
his service and whether any departmental enquiry was
envisaged and actually conducted, are some of the
questions that beg answer in these proceedings. With a view
to come to a correct conclusion, we have perused the official
record produced by Mr. Bikramdeep Singh, Dy. AG,
appearing for the appellants. We, however, could not find
any record relevant to the determination of issue on hand.
One of the communications on record suggests that the
relevant record was not available in the office having been
lost in 2014 floods.
9) Be that as it may, in the absence of relevant record,
we have no option but to conclude that neither a notice
directing the deceased employee to join back service was
ever issued and served on the deceased during his lifetime
nor any enquiry, worth the name, was conducted. The
appellants have solely relied on the provisions contained in
Regulation 113 of J&K CSR Vol. I, which, for facility of
reference is set out below:
"113. After five years continuous absence on leave,
an officer is considered to be out of State employ."
10) Regulation 113 (supra) fell for interpretation before a
Division Bench of this Court in LPA No.46/2004 titled
"Mushtaq Ahmad Khan vs. State of J&K & Ors."2004(3)
JKJ 10 [HC(DB)], in which the Division Bench of this court,
while relying upon judgments of the Hon'ble Supreme Court
and other High Courts on the issue, held that absence from
duty, howsoever long, cannot result in automatic cessation
of employment. In all such cases, the person concerned has
to be given an opportunity of hearing and depending on the
nature of defence taken by him, further action should be
taken. Whether a full-fledged enquiry as envisaged under
Rule 33 of the J&K civil Services (Classification, Control
and Appeal) Rules, 1956, should be held or not, will depend
upon the facts of the case and be left to be discretion of the
authority, subject to scrutiny and judicial review in future
if such an occasion would arise.
11) Relying upon the aforesaid judgment, the Writ court
rejected the sole contention raised by the appellants that
the deceased had ceased to be the employee of the
appellants in terms of Regulation 113 (supra).
12) We see no reason or justification to take a view
different from the one taken by the Division Bench of this
court in Mushtaq Ahmad Khan's case (supra) nor do we
find that the case of the deceased was covered by
Regulation 113 of the J&K CSR Vol. I. It was essentially not
a case of absence without leave or overstaying of leave
beyond the period of five years. Rather, it was a case where
an employee had gone missing. The least that was expected
of the employer was to make an effort to find out the
whereabouts of its employee or, at least, issue a notice on
his home address calling upon him to join the duties. This
has not happened in the instant case. Regulation 113 was
clearly not applicable and even if it was applicable, as is
held in Mushtaq Ahmad Khan's case (supra), an enquiry
in the matter was necessitated. In the instant case, even the
principles of natural justice were not adhered to before
declaring the deceased to have ceased in the employment of
13) Viewed from the above angle, we do not find any legal
infirmity in the impugned judgment passed by the Writ
Court. However, there is one aspect that needs
consideration by this Court. There is nothing on record
placed by the respondents or in the record of the appellants
which would substantiate the contention of the
respondents that in November, 1989, itself when the
deceased allegedly went missing, a report was lodged in the
concerned Police Station. Rather communication
No.CRB/Missing-Pttn/2012-265-85 dated 14.09.2012,
issued by District Superintendent of Police, Baramulla,
indicates that Police Station, Pattan, had not received any
missing report with regard to the deceased. The contention
of the respondents that the deceased was suffering from
unsound mind is also not substantiated by any
documentary evidence on record. There is not a single
document appended by the respondents with the writ
petition which would demonstrate that prior to the recovery
of the dead body of the deceased from Bus Stand, Jammu,
any communication was made by the respondents with the
employer of the deceased or any other authority of the
government. It, therefore, remains to be explained as to
why the respondents, in particular, respondent No.2,
remained silent till the dead body of the deceased was
recovered and all claims for his salary, pension and
compassionate appointment were lodged thereafter.
Apparently, the deceased remained abandoned by the
respondents during his lifetime.
14) The object of providing compassionate appointment,
which is any case is an exception to the general principle
that government employment should be offered by way of
advertisement and proper selection, is to enable the family
in distress to tie over the sudden financial crises in which
it has plunged due to untimely death of their bread winner.
The Supreme Court in the case of State of West Bengal
vs. Debabrata Tiwari & Ors. 2023 LiveLaw (SC) 175, has
held that the compassionate appointment is not a vested
right and the same is related to the financial condition and
hardship faced by the dependents of the deceased
government employee as a consequence of his death. A
claim for compassionate appointment may not be
entertained after lapse of a considerable period of time since
the death of the government employee. Where a long lapse
of time has occurred since the date of death of the deceased
employee, the sense of immediacy for seeking
compassionate appointment would cease to exist and, thus,
it loses significance and this would be a relevant
circumstance which must weigh with the authorities in
determining as to whether a case for grant of
compassionate appointment has been made out for
consideration. In the instant case, Habibullah Shah went
missing in the year 1989. After a considerable delay of
twenty-four years, the respondents filed SWP
No.2328/2013 seeking compassionate appointment in
favour of respondent No.1. Having regard to the object of
compassionate appointment, the purpose thereof cannot be
said to be surviving even after more than two decades.
There is no material placed on record by the respondents,
either before the Writ Court or before us, to demonstrate
that the family of the deceased despite lapse of so many
years continues to be in distress and financial crisis.
15) Apart from the above, before filing SWP
No.1542/2016, the respondents had filed SWP
No.2328/2013 for similar reliefs. However, the Writ Court
while disposing the said writ petition vide order dated 28th
November, 2013, directed the appellants herein to consider
and take decision on the claim of respondent No.1 for his
appointment on compassionate grounds in terms of SRO 43
of 1994, meaning thereby other reliefs were not granted. It
is in pursuance of this order dated 28th November, 2013,
passed in SWP No.2328/2013, impugned consideration
rejecting claim of the respondents was passed. It, therefore,
needs to be seen whether in the face of earlier order dated
28th November, 2013, restricting consideration only to the
compassionate appointment, the Writ Court in the
subsequent writ petition could have travelled beyond the
relief granted in the earlier round of litigation and direct the
appellants herein to pay the service benefits including the
pensionery benefits in favour of the respondents herein.
That apart, during the pendency of this appeal, respondent
No.2 has also died. Should we agree with the observations
of the Writ Court with regard to payment of service benefits
and post retiral benefits, the respondent No.1, being a
major, otherwise also is not entitled to pension.
16) For the foregoing reasons, the instant appeal is partly
allowed by providing as under:
(I) The impugned judgment to the extent of directing
the appellants to release the service benefits viz.
salary of the deceased since the year 1989 till his
death and to consider the case of respondent No.1,
for compassionate appointment, is set aside.
(II) Although the order passed in the earlier petition to
the extent of service benefits would operate as res
judicata, yet we, in the larger interests of justice,
direct the respondents to release gratuity and other
post retiral benefits excluding pension in favour of
respondent No.1, within a period of two months
from the date of receipt of this judgment.
17) The impugned order and judgment of the Writ Court
is modified to the aforesaid extent.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar,
25.10.2024
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
