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2000 DIGILAW 50 (JK)

Sajad Ahmad Mir v. State

2000-02-29

B.L.BHAT, T.S.DOABIA

body2000
1. When compassion is sought then reason has to take back seat. This is the sum and substance of the plea put across by the appellant Sajad Ahmad Mir, whose father died on06-03-1987. 2. The appellant/writ petitioner applied to compassionate appointment in September 1991. At that point of time, he was under age. His case was recommended to the Administrative Department for relaxation of age bar. In the meantime SRO 43 of 1994, Jammu and Kashmir {Compassionate Appointment) Rules, 1994 came into force. The claims of the appellant were declined by the Administrative Department in 1996 communication in this regard is dated: 08-06-1996. This is annexure "N" on the record of the writ petition. This makes mention on the fact that earlier also, claim of the appellant was declined. Reference is being made to earlier communication dated: 12-05-1999 and 12-07-1996. As the inter departmental correspondence which had ensured is relevant. Same is being noticed seriatum:- i) On 26-03-1996, the view expressed was that the appellant cannot seek compassionate appointment under SRO 43; ii) Communication dated: 12-07-1996 seeks approval for relaxation of age bar from Development Commissioner, Power Development Department, Srinagar. iii) Communication dated: 09-01-1997 makes recommendations in favour of the appellant; iv) Communication dated: 05-09-1998 points out that the appellant is entitled to compassionate appointment in terms of SRO 122 dated: 24-03-1983; v) The communication dated: 26-12-1998 makes mention of the fact that the appellant has attained the age of 21 years and has also requisite educational qualification; iv) Communication dated: 12-05-1999 again makes a favourable report. This is given by the Chief Engineer to the Development Commissioner; vii) Communication dated; 08-06-1999 makes a mention of the fact that the request of the appellant stands turned down. As to what was the reason for this, is not given. 3. The learned Single Judge of this Court has come to the conclusion that unless and until earlier communications were challenged, i.e. the decision regarding declining or relaxation of age bar is set aside, no meaningful relief could be given. 4. We are of the opinion that this is a case where Government officials were considering the claims of the petitioner from time to time. The communications have been noticed above. 4. We are of the opinion that this is a case where Government officials were considering the claims of the petitioner from time to time. The communications have been noticed above. Most of them are favourable to the appellant, Therefore, to say that there was any delay and laches on the part of the appellant or that some inter departmental communication is required to be set aside is not apt. This is an argument which cannot be accepted. 5. So far as compassionate appointment is concerned, the appellant™s father died in harness in the year 1987. The claims of the appellant for compassionate appointment were supposed to be considered in terms of Rules and Regulations which were then prevalent. Mere fact that SRO 43 of 1994 came into force on 26-02-1994 would be of no consequence. Rule 9 of the Rules is clear and categoric. It states that any application invited or received or any process initiated for selection of a candidate shall be governed by rules and regulations in force at the time cause of action arose. Case of the petitioner was pending even on 12-03-1993. This Rule reads as under;- "9. Repeal and Saving:- The Jammu and Kashmir Appointment on Compassionate Grounds Rules, 1991 are hereby repealed: Provided that such repeal shall not a) effect the action taken orders issued or appointments made under the rules so repealed; or b) affect the revival of such cases as have been decided under the said rules but fall within the ambit of these rules: or c) affect the cases whether pending on the commencement of these rules or the cases where death of the person specified in rule 2 occurred due to militancy related action prior to the commencement of these rules and all such cases shall be dealt with in accordance with the provisions of these rules." 6. A perusal of the aforementioned Rule would indicate that the claims of the appellant were supposed to be considered in terms of earlier notification issued on the subject. Earlier notification did not fix any limitation time for making an application. The limitation of six months came to be fixed for the first time in SRO 43. Since SRO 43 saves the earlier proceedings, therefore, the claims of the appellants were wrongly rejected. Earlier notification did not fix any limitation time for making an application. The limitation of six months came to be fixed for the first time in SRO 43. Since SRO 43 saves the earlier proceedings, therefore, the claims of the appellants were wrongly rejected. The appellant is accordingly held entitled to compassionate appointment in terms of rules and regulations which were in existence before the coming into force of SRO 43. Let the issue be now considered and a decision be taken within a period of six weeks from the date a copy of this order is made available by the appellant to the respondents. 7. As indicated in the beginning, these are the matters where compassion is required to be shown. We hope that this aspect of the matter would be taken note of and appellant™s claim would be considered. Appellant is held entitled to consideration from the date three years prior to the filing of the writ petition. For this period he would be given notional benefits minus monetary benefits. Benefits would be given to him on the issuance of letter of appointment and this be done within the period indicated above.