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Judgment
O R D E R
Heard learned counsel for the respective parties.
The instant petition has been filed by the learned counsel for the applicant with following prayers:
(i)To issue directions to the respondents to consider the case of the applicant for compassionate appointment on the post commensurating to her qualification in place of her deceased husband Late Sh. Ravinder Kumar or in alternative absorb/regularized the applicant permanently on the post commensurating to her qualification reterospectively w.e.f. the date, the applicant is serving on daily wage basis i.e. June 2014 by issuance of writ of Mandamus.
(ii)To issue directions to the respondents to regularize the services of the applicant by including the services rendered by deceased husband of the applicant Late Sh. Ravinder Kumar as daily wage basis worker and also to give effect of regularization retrospectively by issuance of writ of Mandamus.
The brief facts of the case is that the husband of the applicant, namely, Ravinder Kumar worked as an ITI Worker (in Electric Trade) on Daily Wage Basis in the department of respondents. The husband of the applicant died in harness while he was under the active employment of respondents. The applicant made a representation to Chief Engineer through Proper Channel for appointment on Daily Wage basis just to mitigate the financial crisis in the family after the death of the deceased husband of the applicant whereas the applicant is entitled for permanent appointment under compassionate rules on the post commensurating to her qualification as the applicant is a BA, Computer. Hence, the present petition.
Learned counsel for the applicant submitted that the deceased husband of the applicant who was serving under the respondents though on Daily Wage Basis but the applicant under the provisions of SRO 43 of 1994 is entitled for permanent appointment/regular appointment because the provisions of SRO 43 of 1994 is applicable to the applicant since it is no-where mentioned that it is only for the benefit of Regular employee or Temporary Government Employee alone. It is applicable to the persons who are even serving on Daily Wage Basis because Daily Wage Basis workers also performed duties in connection with affairs of State of J&K.
Learned counsel for the applicant further submitted that the applicant is a qualified lady and has done BA, B.Ed and Diploma in Computer. Ld. counsel also submitted that under the provisions of Rule 3 of SRO 43 of 1994, a person has to be given an appointment commensuration to his/her qualification because under Rule 3, a person has to be appointed against a vacancy in the lowest post of non-gazetted service having qualification above matriculation.
Learned counsel for the applicant also submitted that the husband of the applicant rendered 06 years and 05 months service and only 07 months have been left to complete seven years qualifying service for permanent absorption. So, the applicant can be appointed on compassionate grounds on a permanent post after November, 2014 when the husband of the applicant would become eligible for regularization and respondents instead of extending the benefit of permanent absorption engaged the applicant on daily wage basis which is against the provisions of Compassionate Appointment Rules.
Mr. Rajesh Thapa, learned AAG vehemently opposed the prayer of ld. counsel for the applicant and submitted that SRO 43 of 1994 is applicable to a Govt. employee and a Govt. employee is an employee who is holding a lien on a substantive post. However, the applicant has been engaged as CP worker and the husband of the applicant was also engaged as ITI worker i.e., daily rated worker respectively who are engaged on daily rated basis for rendering casual/seasonal services.
I have heard both the parties and gone through the records and come to the conclusion that the deceased husband of the applicant was died after rendering his service for a period of 6 years and 5 months and 07 months have been left to complete seven years qualifying service for permanent absorption. Regarding this case, some of the judgement passed by Hon’ble High Court of J&K at Jammu is as under:
In ‘Sureksha Rani vs. State of J&K & Ors.’ passed in SWP No. 1236/1997 in which the Hon’ble Court held that:
“4.(i) in the matter of making compassionate appointment the paramount consideration is to see that the members of the deceased family are provided with relief which would mitigate the financial crisis.
(ii)the word "acquire" denotes a conscious act. An effort is made to obtain something. Eligibility on account of death is an event which can never be acquired.
(iii)the period of six months limitation prescribed in the Rule 3 would apply only to acquisition of eligibility qua educational technical and other qualifications,
(iv)that the rules of 1994 are not retrospective. This would govern only those cases where death has taken place after 22.2.1994. The old cases would be continued to be governed by the Old Rules.
(v)that the government is within its rights to relax any of the Rules and if the Government comes to the conclusion that financial crisis is still being faced by the family and as that is the basic factor which guides the authorities in making compassionate appointment, the government can still make appointment notwithstanding the prescription of the period of limitation,
(vi)that in all cases what is required to be seen is that the hardship which the family is suffering is required to be mitigated. If the family is not-suffering any hardship then notwithstanding the presence of all other criteria, the appointment can be denied. If the family is suffering from hardship then compassion has to be shown. Rules can be relaxed. State has to show benevolence.”
In ‘Sunita Rani vs. State of J&K & Ors. passed in SWP No. 1057 of 2012 in which the Hon’ble Court held that:
“……the Provisions of Civil Services (Special Provisions), Act 2010. Section 3 of the aforementioned Act clearly envisages the application of the Act to persons appointed on adhoc, contractual consolidated pay basis, provided that such appointments have been made against the clear vacancies. Section 5 of the Act, inter alia, envisages that a person working on consolidated basis shall be regularized on fulfillment of certain conditions, most important of which is, that he should have completed seven years of service as such on the appointment date.”
In ‘Safia Begum vs. State of J&K & Ors.’ passed in SWP No. 1357 of 2005 in which the Hon’ble Court held that:
“4.….."In my opinion SRO 43 of 1994 merely talks of a person who is a Government employee. It is not for the benefit of regular employees alone. Petitioner's husband was working on daily wages. He was performing duty in connection with affairs of State of Jammu and Kashmir. He would as such, be entitled to the benefit of rules contained in SRO 43 of 1994 referred to above."
In view of the aforesaid law laid down by the Hon’ble High Court, T.A. No. 1088 of 2020 is disposed of with direction to respondents to consider the case of the applicant for regularization in view of the rules & law discussed above for the compassionate appointment and the respondents are also directed to give the regular appointment to the applicant with immediate effect. Compassionate Rule do not permit any appointment on Daily Wage Basis. So, she is entitled for regular appointment.
However, there shall be no orders as to costs.