Srinagar: In a significant judgment Jammu and Kashmir & Ladakh High Court today held that a daughter cannot be excluded from the benefit of compassionate appointment in government service on the ground of being married.
The judgment followed a writ petition titled Mst. Shabeena Khan versus director SKIMS wherein the petitioner challenged the opinion of the respondent authorities that a female married heir cannot be considered to be dependent upon the parents.
The petitioner Shabeena, is a married daughter of late Saleema Khan, who died in harness while serving as senior technician in the SKIMS Soura. On the death of her mother, she claimed to be dependent family member of her deceased technician mother. Thus she applied for appointment on compassionate grounds in terms of the Jammu and Kashmir (Compassionate Appointment) Rules,1994 issued vide SRO 43 of 1994.
She said that she was taken as KhanaNisheen daughter by her deceased mother.
Her case came to be processed and forwarded to the competent Authority of SKIMS. A certificate of dependence upon the deceased mother government employee (as is required under SRO) was also issued by the additional deputy commissioner (ADC) Srinagar on 6th of October 2016.
The SKIMS authorities, however, rejected her application on the ground that a female married daughter “is not dependent upon her parents”.
This communication was challenged by Shabeena. She said the authorities at SKIMS have misinterpreted the SRO and have a poor understanding of the Rule.
Lone Altaf, her counsel argued “under SRO 43, a married daughter, if dependent upon the deceased government employee, is not excluded. In the face of a dependence certificate by the ADC, SKIMS could not have rejected the case of the petitioner”.
The SKIMS submitted that the petitioner was married to one Mohd Yasin Dar of Azad Basti, Natipora, Srinagar and has two kids. “A married son or a daughter cannot be treated as dependent on the deceased parents and, therefore, they are not entitled to the benefit of compassionate appointment as envisaged under SRO 43 of 1994”, the counsel for the SKIMS argued.
It may be mentionedhere that compassionate appointment is an exception to the general rule of appointment in the public services. It is made in favor of dependents of a deceased employee dying in harness and leaving his/her family in dire financial crises.
Justice Sanjeev Kumar who adjudicated the case held “a married daughter, dependent on the employee dying in harness, cannot be excluded for the benefit of compassionate appointment under the Rules of 1994”.
He said the benefit is envisaged only to an eligible family member of a person who has died in harness and the term family member has been defined in explanation (d) of Rule 2 (of Rules of Rules of 1994). “It reads Family Member means spouse, son, daughter, adopted son, adopted daughter, sister or brother dependent on the deceased”, he observed.
Justice Kumar further said “the definition of a family member does not make distinction between a son and a married son or a daughter and a married daughter; what it speaks of is that he/she must be dependent on the deceased”.
He said the instances are not far to be found where a married daughter may still be dependent upon the earnings of the deceased Government employee. Citing an example, he said “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”.
He elaborated that 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”, he said.
The interpretation of Rule“is without substance and flies in the face of clear and unequivocal definition of the term family member”, he said.
A daughter to her parents shall always remain a daughter and would not cease to be so on her marriage, the court said.
Should the ADC on re-verification certify the dependency of the petitioner, within four weeks, SKIMS shall process the case of the petitioner Shabeena for compassionate appointment. “It shall consider her for such appointment within a period of four weeks thereafter”, directed the court.
