The Bench of Justice Sanjeev Kumar has observed in a petition that a daughter to her parents shall always remain a daughter and would not cease to be so on her marriage and a married daughter, who is otherwise dependent on the employee dying in harness, cannot be excluded for the benefit of compassionate appointment under the Rules of 1994.
The definition of a family member provided in explanation (d) of Rule 2 does not make distinction between a son and a married son or a daughter and a married daughter; what it speaks of is that such a son or a daughter whether married or unmarried, must be dependent on the deceased, the Court observed
The Court aslo observed that once the statutory rules governing the compassionate appointment do not make any distinction between a dependent daughter and a dependent unmarried daughter, it is not open to the employer to carve out this distinction of its own to deny the benefit of compassionate appointment to the dependent family member of its employee dying in harness.
In the instant case, the case of the petitioner for compassionate appointment was disapproved by the respondents for the reason that under SRO 43 of 1994, a female Government servant after marriage is not dependent upon her parents and thus is not entitled to the benefit for compassionate appointment.
Facts in Brief:
It was the plea of the petitioner that she is a married daughter of late Saleema Khan, who died in harness while serving as Senior Technician in the Sher-e-Kashmir Institute of Medical Sciences, Soura, Srinagar [SKIMS]. On the death of her mother, namely Saleema Khan, the petitioner, claiming to be the dependent family member of the deceased Government employee, applied for appointment on compassionate grounds in terms of the Jammu and Kashmir (Compassionate Appointment) Rules,1994 issued by the Government vide SRO 43 of 1994. The petitioner claimed her dependence on the deceased mother on the ground that though she was married, yet she was taken as Khana Nisheen daughter by the deceased.
The Court framed only one question in order to determine the issue in the petition i.e., whether a married daughter, dependent on the deceased Government employee who dies in harness, is entitled for compassionate appointment under Rules of 1994.
At the outset, the Court observed that compassionate appointment is an exception to the general rule of appointment in the public services and is made in favour of dependents of deceased employee dying in harness and leaving his family in dire financial crises and without any adequate means of livelihood. Ordinarily, for providing employment in public services, all aspirants having eligibility and qualification to hold a post should be given equal opportunity to compete in a fair and transparent process of selection in consonance with the mandate of Articles 14 and 16 of the Constitution.
The Court while determining the main question referred to explanation (d) of Rule 2 and observed that, the term “Family Member” means spouse, son, daughter, adopted son, adopted daughter, sister or brother dependent on the deceased.
10. The definition of a family member reproduced above as is evident from its bare reading, does not make distinction between a son and a married son or a daughter and a married daughter; what it speaks of is that such a son or a daughter whether married or unmarried, must be dependent on the deceased.There could be many instances where an unmarried daughter, who is gainfully employed in a public or private sector, may not be dependent upon the deceased employee. The instances are not far to be found where a married daughter may still be dependent upon the earnings of the deceased Government employee. For example, an unemployed non-earning divorced daughter, particularly a Muslim woman, who may not be even entitled to maintenance after Iddat period in case of her divorce, may still be dependent upon her parents. Even a married daughter having physically challenged or fully disabled husband may be dependent upon the earnings of her parents. It is, thus, not correct to generalize that a married daughter or for that matter a married son can never ever be dependent upon the parents.
While showing disagreement with the plea of the respondents that the petitioner being a married daughter is excluded from the definition of a family member given in explanation (d) of Rule 2 of Rules of 1994, the Court observed that once the statutory rules governing the compassionate appointment do not make any distinction between a dependent daughter and a dependent unmarried daughter, it is not open to the employer to carve out this distinction of its own to deny the benefit of compassionate appointment to the dependent family member of its employee dying in harness.Once the family member of the deceased employee, whether spouse, a son married or unmarried, a daughter married or unmarried, adopted son married or unmarried, adopted daughter married or unmarried, adopted sister or brother married or unmarried, is found on enquiry by the competent Authority dependent upon the deceased Government employee and otherwise fulfils other eligibility requirements, it is not open to the employer to deny the appointment to such member by constricting and limiting the definition of the family member given in the aforesaid Rules.
The Court while interpreting the word “daughter” made the following observations:
12. A daughter to her parents shall always remain a daughter and would not cease to be so on her marriage. Reading the word “daughter” given in the definition of family member in the Rules of 1994 as only an unmarried daughter and excluding the unmarried daughter therefrom would be tantamount to reading into the definition of family member something which the rules making the authority never envisaged. The respondents are not competent in law to read into, modify or alter the plain definition of family member given in the Rules of 1994. I am, therefore, of the considered view that having regard to the definition of daughter given in explanation (d) of Rule 2 of the Rules of 1994, a married daughter, who is otherwise dependent on the employee dying in harness, cannot be excluded for the benefit of compassionate appointment under the Rules of 1994.
The Court concluded that in terms of explanation (d) of Rule 2 of the Rules of 1994, the term “a son and a daughter” includes a married son and a daughter respectively. The said Rules do not make any distinction between a daughter and a married daughter and both would be included in the definition of “family member” and would be eligible to apply for compassionate appointment provided she is dependent on the Government employee dying in harness. The dependence of such applicant whether she is unmarried or married daughter is to be certified by the competent Authority. The Deputy Commissioner of the concerned District has been appointed as a competent Authority to issue certificate of dependence in favour of such applicants claiming compassionate appointment under the Rules of 1994.
Dependence Certificate issued after two years of the death of the Government employee:
On the plea of the respondents that the dependence certificate having been issued by the competent Authority after two years of death of the government employee was not entertainable, the court observed that the Rule 3(1) of Rules of 1994 as amended vide SRO 201 of 2007 (supra) only provides for submission of application for compassionate appointment under the aforesaid Rules within one year from the date of death of the deceased. The dependent certificate is issued by the competent Authority i.e the Additional Deputy Commissioner concerned only after a request in this regard is made by the employer/authority competent to appointment on compassionate grounds.
The Court after perusing the dependent certificate issued by the Additional Deputy Commissioner, Srinagar, observed that it clearly transpires that the certificate has been issued by him on the request received by him from the Administrative Officer (Personnel) of SKIMS vide his letter No. SIMS/Per/ 1180/2014/601-02 dated 28.02.2014. That being the position, the plea of the respondents that the dependent certificate was submitted beyond a period of limitation of one year is grossly misconceived and preposterous to say the least.
The Court while allowing the petition issued a writ of Certiorari and quash the impugned communication and issued directions to the respondent-SKIMS to have the dependent/legal heir certificate dated 06.10.2016 (supra) issued by the Additional Deputy Commissioner, Srinagar re-verified.
The Court further directed the respondent-SKIMS to process the case of the petitioner for compassionate appointment and consider her for such appointment within a period of four weeks after receiving the re-verified dependency certificate.
Case Title and No: Mst. Shabeen Khan vs Director, SKIMS and another
Coram: Justice Sanjeev Kumar
Date of Judgment: 31-01-2022
Mr.Lone Altaf, Advocate appeared for the petitioner
Mr. Sheikh Feroz, Dy AG, appeared for the respondents