FAROOQ AHMAD GANAI Vs. STATE
LAWS(J&K)-2006-4-16
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 24,2006

Farooq Ahmad Ganai Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THIS petition enshrines a prayer for initiation of contempt proceedings against respondents for alleged violation of judgment of this curt dated: 28.4.2003 purported to have been passed in SWP No. 605 of 2003 whereunder petitioner's plea of appointment under SRO 43 of 1994 was disposed of with an observation that he shall file representation before competent authority who shall consider and dispose of the same within three months there from provided the said SRO was in force on that date. Grounds pleaded are that despite service of a copy of judgement alongwith representation, respondents failed to act in terms thereof and as such are guilty of disobedience. In their statement of facts respondents have stated that petitioner's father namely Abdul Gani Wani was no doubt working as Daily Wager with respondent/department and due for regularization in terms of SRO 64 of 1994, but he died before such regularization even though same had been duly recommended to Administrative Department, and as such was not in employment of State at the time of his death due to which petitioner's request for employment under SRO 43 of 1994 could not be considered. During course of submissions, counsel appearing for respective sides have reiterated the contents of their pleadings etc.
(2.) I have heard learned counsel and considered the matter. That petitioner's deceased father had been working with respondent/department for a long period of time and had in view of SRO 64 of 1994 earned a right of regularization, is not disputed by respondents. That at the time of his death he had as a matter of fact not been regularized, is not denied by petitioner. Taken cumulatively these two aspects, attend the question as to what should be the answer to petitioner's claim of appointment on compassionate grounds under SRO 43 of 1994 in given circumstances. Perusal of additional pleadings supplied by parties reveals that petitioner's deceased father had become due for regularization on 14.12.2000 but his case for such regularization was forwarded to the administrative department on 14.02.2001 only, under respondents No. Adm/NG/6126 of that date, who appears to have taken up the matter with concerned committee vide letter No. A/51/94 -246 dated: 01.10.2001. A recommendation for relaxation of age/qualification in the matter was made by respondents to administrative department under No. Adm/Ng/10252/1/10/02, who in response vide their No. Agri/Horti/135/98 dated: 12.2.2002 asked for photographs and other data of daily wagers including that of the petitioner's deceased father which was forwarded on 16.4.2002. In response thereto certain discrepancies were pointed out in the case by Assistant Director on 25.4.2002 which were cleared by respondents' letter dated: 11.05.2002. In between, petitioner's fathers expired on 5.4.2002 and as such the case was returned by Assistant Director vide their No. Adm/Ng/79 -11/4908 dated: 22 -07 -2002.
(3.) IN view of the circumstances and correspondence referred to above, it is more than settled that the case of petitioner's deceased father for regularization was under active consideration of the concerned department at the time of his death even though he had earned a right for regularization precisely two years before. That the process of regularization did not materlise with due dispatch, is squarely attributable to the delay involved at official level thus obviously beyond control of the deceased daily wager. As a matter of fact, had the departmental acted in the matter with due promptitude the deceased father of petitioner might have been regularized on the merit of his own case. So it is perfectly due to official laches, that the petitioner is made to suffer for, and held disentitled to claim benefit under SRO 43 of 1994 for compassionate appointment only because his fathers regularization could not be formalized even though for no fault of his. In fairness, therefore, this misfortune suffered by petitioners father due to official initia should not be allowed to pass down to the petitioner only to multiply his agony. Instead, his claim deserves to be addressed in the given prospective as aforesaid in view whereof it does not appear wholly misplaced. This line of approach also finds support from a Division Bench Judgment of this court passed "Ashok Kumar v. State & Ors" reported as 2003 (II) SLJ 475, whereunder while elaborating upon the rights of daily wagers to seek continuation and regularization, the bench while drawing conclusions observed in Sub -Para 45 (15) of the judgment: - "45(15). That a person can claim compassionate appointment if the deceased employee was entitle to regularization but was not so regularized." and the observation fully covers the instant case. ;


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