Mukesh Kumar v. State of J & K & Ors.

CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

ORDER 08.06.2023 This intra-court appeal is directed against the judgment dated

26.12.2017 passed in SWP No. 736/2009 against the judgment of learned single Judge (the writ Court) dated 26.12.2017, whereby the writ Court has dismissed the petition of the petitioner/appellant herein. The facts leading to the filing of this appeal are that on 19.05.1994 when the militancy was at peak in District Doda, the militants attacked village Goha (Kahal). The attack of the militants was given befitting reply by the villagers including the family of the appellant. Two militants were killed in the incident. The family of the appellant and other villagers had to migrate to the neighbouring District Chamba in the State of Himachal Pradesh, in order to save their lives from possible retaliation by the militants. It is averred that on the very next day, the militants attacked the village yet again and burnt several houses including the house of the grandfather of the appellant.

After restoration of peace in the area, the villagers returned to their village and were assured of all financial assistance for construction 2 LPA No. 24/2019 CM No. 1156/2019 of their houses. They were also promised employment to the eligible members of the families in the village, who had suffered in the militant attack. It seems that apart from providing monetary assistance to the family of the appellant, the cousin of the appellant, namely, Sanjay Kumar, who is also Grandson of Kartar Singh, who had actively participated in foiling the militant attack was provided employment in the Government department in the year 2007. The appellant claiming to be similarly situated with Sanjay Kumar felt aggrieved by his exclusion from consideration for employment and filed SWP No. 736/2009 in this court, seeking inter-alia, a direction to the respondents to consider his claim also for his employment in any government department in the category of Class-IV employees on the analogy of his cousin Sanjay Kumar.

The writ petition was contested by the respondents who in their objections, clearly stated that in lieu of the act of bravery exhibited by the villagers including the grandfather of the appellant and Sanjay Kumar while repelling militant attack, they were provided adequate financial assistance. The grandfather of the appellant alone was sanctioned and paid sum of Rs. 35,050/- as an ex-gratia relief, besides his house was reconstructed by the Army. The petitioner was considered on the basis of material on record and having regard to the rival contentions, the writ Court did not find favour with the contentions of the appellant, and accordingly, vide its judgment dated 26.12.2017 dismissed the petition. It is this judgment of learned single Judge, which is called-in-question before us on multiple grounds.

Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment passed by the writ Court is perfectly legal and unexceptionable in the given facts and circumstances of the case. It is true that the villagers of village Goha showed enough courage to give befitting reply to the militant attack, which took place on

19.05.1994 in which they even succeeded in eliminating two militants involved in the attack. Some arms and ammunition were 3 LPA No. 24/2019 CM No. 1156/2019 also recovered from the militants, which the villagers handed over to the army.

It is also not in dispute that after the aforesaid incident and fearing retaliation by the militants, the inhabitants of the area left the village and migrated to District Chamba of State of Himachal Pradesh. As apprehended, the militants attacked the village on the very next date and set on fire in as many as nine residential houses. As is admitted by the respondents in their reply affidavit, one shop and three water mills situated in village Goha were gutted in the fire, out of which one house, one shop and one water mill belonged to the grandfather of the appellant, namely, Kartar Singh.

As per the scheme in vogue, the Deputy Commissioner, Doda vide its order No. 575-80/IR/D dated 18.07.1994 sanctioned ex-gratia relief of Rs. 35,050/- in favour of the grandfather of the appellant on account of damage cause to his property by the militants in the incident. The gutted houses of the victims including that of the grandfather of the appellant were also rebuilt by the Army. It is further case of the respondents that the grandfather of the appellant had also made an application to the Deputy Commissioner, Doda for appointment of his son, namely, Bansi Lal (father of the appellant herein). He could not be accommodated because of his inability for the post and it seems and as is contended by the learned counsel for the appellant, the other grandson of Kartar Singh, namely, Sanjay Kumar was given the appointment. It is, thus, clear that on account of bravery exhibited by the grandfather of the appellant, namely, Kartar Singh, he was provided threefold relief:- “(i) Ex-gratia relief. (ii) His house was rebuilt.

Appellant is another grandson of Kartar Singh and wants his employment (iii) One of the grandsons was appointed.” on the parity of the engagement of Sanjay Kumar. As is, rightly observed by writ Court that the appellant has not been able to substantiate his claim for employment on the basis of any scheme or instructions issued by the Government to provide employment to those, who may be instrumental in eliminating the militants. However, in the instant case, 4 LPA No. 24/2019 CM No. 1156/2019 we find that threefold relief was granted to the family. It cannot be the policy of the government to provide employment to every grandson of Kartar Singh, who had participated in the counter attack that was launched by the villagers on the militants, who had attacked the village on 19.05.1994.

The grievance of the petitioner is that, he is similarly situated with his cousin-Sanjay Kumar and, therefore, should also be appointed. It is not the case of the appellant that he had a preferential right over Sanjay Kumar and that the appointment of the said Sanjay Kumar was in supersession of his better right. Even in that eventuality, it was incumbent upon the appellant to challenge his appointment.

For all the reasons narrated above and those contained in the judgment of learned single judge, we find no merit in this appeal, the same is, accordingly, dismissed. (Javed Iqbal Wani) Judge Judge (Sanjeev Kumar) JAMMU 08.06.2023 Avish Kohli Whether the order is speaking? : Yes/No Whether the order is reportable? : Yes/No