Ashiq Hussain Farash vs State

Mr. Muzaffar Hussain Attar, J. (Oral) - Following reliefs are sought in this writ petition :

In the premises it is therefore prayed that this Hon'ble Court may pass an appropriate order or direction one in the nature of :

Certiorari quashing the impugned communication letter to the extent of ex-gratia amount as the same is not in consonance with rules and regulations

and the respondents deserve to be directed to pay ex-gratia relief of Rs. 20,00,000/- in favour of the petitioner.

Certiorari to quash impugned order dated 11.11.2011 to the extent it denies ex-gratia relief of Rs. 20,00,000/- for petitioner to offer him

appointment as class-IV.

Mandamus commanding the respondents to offer appointment to the petitioner against class - IV vacancy in any Govt. Department.

Despite opportunities, Reply Affidavit has not been filed till date. Even, learned counsel for the respondents, has not come up with a stand in

terms of Court order dated 24th July, 2015, which is taken note of :

Mr. Shah seeks and is granted three weeks' time to file reply on behalf of respondents with copy to the other side.

This is the second round of litigation on petitioner's right to be considered for compassionate appointment and ex-gratia relief. When it was pointed

out to learned AAG that petitioner's claim stands admitted by respondents in as much as petitioner is said to have fallen victim to cross firing

incident and to have been hospitalized because of bullet injury and that matter calls for consideration on compassionate grounds, Mr. Shah

proposes to come up with a clear stand on next date of hearing.

List on 20th August, 2015.

The petitioner, in the writ petition, has pleaded that he belongs to a poor family and was the only source of livelihood for his family having no

landed estate or any other source of income. It is his case that he was hit by a bullet and in essence, he was caught in cross firing between the

security forces and militants. It is also pleaded that the petitioner sustained serious injuries and was admitted in SKIMS, Soura, Srinagar, under

MRD No. 74594 and a medical case of bullet injury on right side of chest and right upper arm was registered on 31st December, 1990. The

petitioner was discharged on 10th January, 1991 and was advised treatment at AIIMS, New Delhi.

It is also pleaded that because of poverty, the petitioner could not undergo further treatment at AIIMS, New Delhi, which resulted in loss of

movement of his right arm and right hand, thus, rendering him handicapped for whole of his life. It is also pleaded that the petitioner, because of the

aforesaid disability, is not in a position to make his both ends meet, whereas, prior to suffering of bullet injury, he was working as a laborer.

Petitioner's claim for grant of compensation/relief, to the extent of Rs. 20/- lacs, has been denied to him by the respondents and his further claim

for appointment as class IV employee has also been denied, which has constrained him to file this writ petition.

Learned counsel for the petitioner submitted that in this fact situation, the respondent - State is duty bound to pay compensation to the petitioner

and appoint him on a class IV post, being middle pass.

Learned counsel for the respondents vehemently argued that this writ petition is not maintainable, in as much as, a Civil Suit on same cause, filed

by the petitioner, stands dismissed for non prosecution. Learned counsel further submitted that at the time of sustaining of the injury, the petitioner

was a minor.

In a society like ours, governed by rule of law, more particularly, when the basic human rights are recognised by the constitutional provisions

contained in Part III of the Constitution of India, it becomes duty of the respondent - State to protect life, liberty and property of its citizens.

Articles 19(g) & 21 of the Constitution of India is taken note of :

RIGHT TO FREEDOM

19 : Protection of certain rights regarding freedom of speech, etc.

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(g): to practise any profession, or to carry on any occupation, trade or business.

21: Protection of life and personal liberty.

No person shall be deprived of his life or personal liberty except according to procedure established by law.

In the aforesaid fact situation of this case, the petitioner has sustained bullet injuries, which has rendered his right arm movement less. The

petitioner, who was working as a laborer, as per pleadings in the writ petition, has been, thus, deprived to practise any profession or to carry on

any profession, trade or business as guaranteed by article 19(g) above. Thus, It becomes the duty of respondent-State to adequately compensate

the petitioner.

Besides this, because of the action of the respondent-State, the guarantee, contained in article 21 of the Constitution of India, as available to

the petitioner, has also been infringed, in as much as, he is not in a position to lead his life as a normal human being, which status, Almighty had

given to him, as he was born as an able bodied person and was working as a laborer for making his both ends meet. The quality of his life stands

impaired because of the action of respondent - State. On this ground also, the respondent-State is duty bound to pay adequate compensation to

the petitioner.

In our constitutional scheme, it is the constitutional provisions and laws of the land and other laws, which govern the State. The respondent-

State, having failed to enforce the aforesaid constitutional provisions, has, in turn, failed in its duty to protect the petitioner and has also failed in

allowing him to lead his life as an able bodied person. The respondent-State is duty bound to compensate the petitioner.

The petitioner, as stated at bar by his learned counsel, is a middle pass. It is also submitted that the age of the petitioner at present is about 34

years. In this fact situation, the petitioner has a whole life ahead of him and because of loss of movement of his right arm and right hand, he is

definitely deprived of his capacities to earn his livelihood in the manner, which he would do before sustaining the bullet injury.

The dismissal of Civil Suit for non prosecution, which means nothing is decided by the Civil Court on merits, will not render this writ petition

unsustainable in law.

For the above stated reasons, this writ petition is disposed of along with connected IAs in the following manner :

The respondent-State is directed to pay an amount of Rs.15/- lacs ( Rupees fifteen lacs) as compensation to the petitioner. This amount shall be

paid to him within four weeks from the date copy of this order is served on the respondent-State.

Disposed of along with CMPs.