Excelsior Correspondent
Srinagar, Oct 31: The division bench of the High Court set aside the writ court judgment directing release of 20-year salary and compassionate appointment to the next kins of deceased employee of Power Development Department and directed to release retiral benefits only in favour of son of the deceased.
The division bench of Justice Sanjeev Kumar and Justice Rajesh Sekhri has allowed the appeal filed by the Government against the judgment passed by the single judge. The single judge had allowed the writ petition filed by the next kins of deceased Habibullah Shah who was working as lineman in the Power Development Department and died due to harness.
The writ court had directed the appellant-Government to release the service benefits viz. salary, gratuity and other allied benefits that had accrued to the deceased from the year 1989 till his death and to release the pensionery benefits in favour of next kinds of deceased and onsidering the case of son of the deceased for appointment on compassionate grounds.
“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”, DB concluded adding with “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 (son), within a period of two months from the date of receipt of this judgment”
Shah was in the service of PDD and was holding the post of Lineman since 1973 and 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.
The matter on the directions of court was considered by the appellant-Government and vide communication No.CE/M&RE/Adm-II/13230/AS dated 27.06.2016, the claim of the son of the deceased for compassionate appointment was rejected. It is this order of rejection which was called in question by the respondent-son in 2nd round of litigation and the wirt court directed to release the service benefits viz. salary of the deceased since the year 1989 till his death and to consider the case of his son, for compassionate appointment.
The Superintending Engineer, EM&RE Circle-II, Srinagar, Kashmir in his reply 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, 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 his son to seek compassionate appointment under SRO 43 of 1994.
The writ court agreed with the contentions of the respondents (kins of deceased) 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 which the Government challenged before the division bench and succeeded in the appeal.
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