Gujarat High Court: A Division Bench comprising of M.R. Shah and A.Y. Kogje, JJ., decided a petition wherein Union of India was directed to allow compassionate appointment to the petitioner- sister of an Indian spy languishing in prison in Pakistan.

The petitioner sought appointment on compassionate grounds as per her educational qualification. Further, ex-gratia compensation of over and above Rs. 5,00,000 as awarded by the Court in earlier proceedings, was also prayed for. According to the petitioner, her brother Kuldip Yadav was recruited by Border Security Force (BSF) for Research and Analysis Wing (R&AW) military intelligence in 1991. He was deputed at New Delhi and thereafter sent to Pakistan. It was further submitted that Kuldip Yadav was arrested in Pakistan in 1994, and has been languishing in their jails, possibly at Kot Lahkpat (Lahore), since. The Respondent Union of India took a stand that it could not allow the appointment of the petitioner on compassionate grounds, as by virtue of the consolidated instructions, a compassionate appointment can be made only in the event of Government servant dying in harness or who has retired on medical grounds leaving his family without pecuniary support.

The High Court noted it to be a settled position that Kuldip Yadav was languishing in Pakistan jails in pursuance of the sentence imposed by Court Martial. However, it was denied by the Union of India that he was appointed by BSF or any other agency. The Court observed, in peculiar facts and circumstances of the case, naturally, there may not be any record available, more particularly with respect to such persons who may be appointed for secret services. The Court held that in special circumstances of the case where the brother of the petitioner is undergoing sentence in Pakistan for espionage, the instant matter required to be treated as an absolutely exceptional one and the petitioner, sister of the prisoner in Pakistan, should be appointed on compassionate grounds as per her educational qualification. The Court directed the respondents to complete the exercise within four weeks. The petition was accordingly allowed in part. [Rekha Nanakchand v. Union of India,2018 SCC OnLine Guj 1077, dated 12-6-2018]

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