Neeraj Rohmetra
Jammu, Sept 16: The Supreme Court today pulled up the Jammu and Kashmir Government for its policy to give differential ex-gratia compensation to residents of State and outsiders, who become victim of riots or other incidents of violence.
Expressing its annoyance over the ‘discriminatory’ policy, the Supreme Court Bench said, “we know that you have a special status by virtue of the Constitutional position but can you manage the State without the assistance of others? Can you discriminate between State subject and outsiders, who lost their lives while serving in your State?”
These observations were made by the Division Bench of the Apex Court, headed by Chief Justice P Sathasivam with Justice Mrs Ranjana Prakash Desai while reacting to the affidavit filed by State Government, in response to a PIL seeking direction to Centre and J&K Government to provide adequate security to pilgrims in Kishtwar area.
The Supreme Court also took strong exception to the fact that the affidavit on behalf of the State Government had been filed by Additional Secretary General Administration Department (GAD), Feroze Ahmad Sheikh and not by the Chief Secretary, as directed by the Court in its previous order. “The affidavit is on behalf of State Government and therefore needs to be filed by Chief Secretary and not some other official”, said the Bench.
Meanwhile, in its fresh affidavit filed before the Apex Court, the State Government also justified its stand of differential compensation policy by invoking the Instrument of Accession and the Special Status granted to it by Article 370 of the Constitution.
The affidavit, whose copy is in possession of EXCELSIOR says, “It is most respectfully submitted that where ex-gratia payments are made by way of discretionary relief, no legally enforceable right is vested in any beneficiary to claim equally or identical treatment with another beneficiary of ex-gratia reliefs under the same policy”.
While claiming that the State Government’s policy doesn’t suffer from any vice of unconstitutionality, the affidavit says, “under the constitutional scheme applicable to Jammu and Kashmir State, the Government is permitted to confer special privileges upon the residents of the State in certain matters like grant of aid”, adding, “in any event, since ex-gratia payments are made by way of discretionary relief, no legally enforceable right is vested in any beneficiary to claim identical treatment with another beneficiary of ex-gratia relief under the same policy”.
The affidavit stated that the grant of ex-gratia payment by the State isn’t discriminatory in view of the fact that in most cases other State Governments have also made similar provisions for such type of cases relating to State subject and outsiders.
Denying any discriminatory approach on part of State Government, the affidavit explains, “the NoKs of Security Forces of CAPD personnel, who are “Permanent Residents” of the State receive (i) ex-gratia payment of Rs. 5 lakh from the State and (ii) ex-gratia payment of Rs. 15 lakh from the Central Government, totaling to an amount of Rs. 20 lakh. On the other hand, NoKs of Security Forces of CAPD personnel, who are not “Permanent Residents” of the State, receive (a) ex-gratia payment of Rs. 2 lakh from the State; (b) ex-gratia payment of Rs. 15 lakh from the Central Government; and (c) ex-gratia payment from their respective State Governments”.
“The sole objective behind providing ex-gratia relief to the victims of militancy and militancy related incidents, particularly to different wings of security agencies, is aimed at boosting their morale and to demonstrate the State Government’s sense of gratitude towards such great souls, who sacrificed their lives for unity and integrity of the country. The supreme sacrifices made by the people, including personnel of J&K Police and Paramilitary forces cannot be monetarily measured, nor can ever be compensated in monetary terms, yet the State Government endeavours to pay ex-gratia relief to such victims as a token of respect”.
Vowing to develop a comprehensive ex-gratia policy, the State Government says further, “the policy with regard to payment of ex-gratia relief to the paramilitary/security forces, defence personnel and J&K police personnel is being reviewed by the State Government with the objective of providing an updated and comprehensive policy in this regard. An endeavour is being made to complete this exercise within the shortest possible time.”
“It is respectfully submitted that with passage of time and improvement in overall situation in the State, besides decline in militancy and militancy related incidents, the J&K Police has been entrusted the task of fighting the militants and to maintain law and order situation to a greater extent. Paramilitary forces have been gradually withdrawn from most of the areas and it is the J&K Police personnel who are doing commendable job in this direction”, the affidavit added.
“The State police personnel in recent times have suffered a number of causalities in combating militancy and the State Government has shown equal concern about their welfare and for their NoKs. Accordingly, vide Government Order No. 36-GAD of 2013, dated 07.01.2013, ex-gratia relief has been enhanced from Rs. 2.00 lakh to Rs. 7.00 lakh for its payment to NoKs of J&K Police Personnel killed in militancy related incidents”, says the document.
Elaborating further, the affidavit says, “enhancement in case of J&K Police personnel has been made on the basis of the recommendations of State Police Headquarters, which indicated that the State Government grants ex-gratia relief of Rs. 2 lakh and the Centre Government grants ex-gratia relief of Rs. 3.00 lakh to J&K Police personnel killed in militancy related incidents (a total of Rs. 5 lakh), while CAPF (Central Armed Police Force Personnel) killed in similar circumstances and at times in the same operation receive ex-gratia relief of Rs. 17.00 lakh (Rs. 2.00 lakh from the State Government and Rs. 15.00 lakh from Government of India)”.
“This recommendation was considered by the State Government and accordingly in order to reduce this disparity of ex-gratia received by J&K Police personnel and CAPD personnel, often involved in the same operation, ex-gratia relief paid by the State Government to J&K Police personnel has been enhanced from Rs. 2.00 lakh to Rs. 7.00 lakh in respect of J&K Police personnel, who get killed in militancy related incidents and this ex-gratia amount is being paid to their NoKs, which is still less than Rs. 15 lakh being paid to CAPD personnel by Central Government”, the documents says.
Earlier, the State Government had sought two weeks’ time to file the affidavit but the bench directed it to do so within a week and posted the matter for hearing today.
Senior advocate Bhim Singh, appearing for Sudesh Dogra of J&K National Panthers Party who has filed the PIL, had cited a Government order of 1990. He claimed that the order was discriminatory as “the next of kin of personnel of paramilitary forces, if he is a permanent resident of J&K, is sanctioned Rs 5 lakh (in case of death), whereas for other personnel of paramilitary forces only Rs 2 lakh is sanctioned if they are Indian citizens.”
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