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2001 DIGILAW 127 (JK)

Gulzar Ahmad Mir v. State Of J. &K.

2001-06-25

B.L.BHAT, H.K.SEMA

body2001
1. We heard Mr. Qayoom, learned counsel for the appellant as well as Mr. M.I. Qadri, learned counsel for the respondents. Being aggrieved by a judgment and order dated: 11.05.1999 passed by learned Single Judge in SWP No. 150 of 1998 dismissing the petition, the present appeal has been preferred by the writ petitioner. 2. The facts in compendium leading to the filing of the present writ appeal are these: - 3. The appellants father Ghulam Hassan Mir was working as Head constable at Police Station, Anantnag. He was shot dead by extremist on 18.03.1990. Thereafter the appellant was appointed to the post of Constable on compassionate ground by an order dated: 26.04.1990. One Rattan Lal whose father was also working as Head Constable and was gun down by extremist sometime in 1994 has also been appointed on compassionate ground to the post of ASI of Police by the appropriate Government. Thereafter the appellant as writ petitioner filed SWP No. 150 of 1998 claiming inter alia that the writ petitioner is equally situated and circumstanced with one Mr. Rattan Lal who has been appointed to the post of ASI of Police and accordingly seeking a writ of mandamus for a direction to the respondents to also appoint the appellant to the post of ASI of Police as in the case of one Rattan Lal Mr. Rattan Las has not been arrayed as a party respondent either in the writ petition or before the appellate court. 4. The aforesaid contention has been rejected by the Learned Single Judge that the case of the appellant and Mr. Rattan Lal is not equally circumstanced in as much as one Mr. Rattan Lal had an educational qualification of Post Graduate and the writ petitioner was under matric at the time he was appointed to the post of Constable on 26.04.1990. On this sole question the writ petition was dismissed. 5. Before we advert to the points urged by the learned counsel for the appellant, we may at this stage point out that in a compassionate appointment, the seeker of appointment has no legally enforceable right to claim an appointment to a particular post. On this sole question the writ petition was dismissed. 5. Before we advert to the points urged by the learned counsel for the appellant, we may at this stage point out that in a compassionate appointment, the seeker of appointment has no legally enforceable right to claim an appointment to a particular post. A compassionate appointment is entirely within the discretionary domain and the executive authority may appoint a seeker to a post purely on compassionate grounds to ameliorate economic distress faced by the family of the bread winner due to the demise of bread winner of the family. The Apex Court had an occasion to consider a similar question in "State of Bihar, appellants Vs. Sansuz Zoha, the respondents etc.," (AIR 1996 SC 1961). In that case the High Court has directed the appropriate Government to consider the case of the candidate for appointment to class II post by way of promotion. On appeal this direction has been depreciated by the Apex Court and it was held that such direction is impermissible. This would show that a compassionate appointment is not an indefeasible right in the hands of the appellant to claim for appointment to a particular post. In short no indefeasible right had been accrued to the writ petitioner for claiming an appointment to a particular post on compassionate ground. 6. The basic foundation of a writ of mandamus is an existence of legally enforceable right. Since the writ petitioner does not possess any indefeasible right to claim for appointment to a particular post, no writ of mandamus can be issued in such cases. 7. Having said so, let us proceed to consider the submissions advanced by Mr. Qayoom, learned counsel for the appellant. The core grievances of the appellant is that he has been unequally treated in as much as the appellant is equally circumstanced with one Mr. Rattan Lal who has been appointed to the post of ASI of Police on compassionate ground. The equal circumstances of the appellant with Rattan Lal is to the extent that both the fathers were working as Head Constable at the relevant time. Both the fathers were gun down by the extremist. The father of the appellant in 1990 and the father of one Rattan Lal in 1994. to that extent the appellant and Rattan Lal are equally circumstanced. Both the fathers were gun down by the extremist. The father of the appellant in 1990 and the father of one Rattan Lal in 1994. to that extent the appellant and Rattan Lal are equally circumstanced. However, from the judgment of the learned Single Judge it clearly appeared that the circumstances weighed in the order of the appropriate authority, appointing Mr. Rattan Lal to the post of ASI of Police because the possessed the qualification of Post Graduate degree. At the bar, counsel for the appellant admit that the appellant was appointed as constable on 26.04.1990 when he was under matric. It is also clear from the judgment of the learned Single Judge that one Rattan Lal who has been appointed to the post of ASI of Police in 1994 possessed the qualification of ASI of Police in 1994 possessed the qualification of Post Graduate degree. It is in these circumstances that the case of the appellant is not equally circumstanced with one Mr. Rattan Lal who has not been arrayed as a party respondent in the writ proceedings. It must be grasped that the equality clause is applicable to equal circumstances. If un-equal is treated equally it amounts to discrimination in reverse. The fact that one Mr. Rattan Lal possessed post Graduation qualification and the appellant is only under-matric at the time of his appointment would clearly show that there was intelligible differentia between the appellant and one Mr. Rattan Lal 8. Mr. Qayoom, learned counsel for the appellant also urged that at the time when Mr. Rattan Lal was appointed to the post of ASI of Police on compassionate ground he was not eligible for such appointment because he was barred by the age by two years and the appropriate authority has appointed Mr. Rattan Lal after relaxation of age by exercising the power arbitrarily. We have already said that Mr. Rattan Lal has not been impleaded as a party respondent in the writ petition Counsel for the appellant also submit that he is not assailing the order of appointment of one Mr. Rattan Lal. On the other-hand we are clearly of the view that considering the educational qualification of Mr. Rattan Lal, the appropriate authority in its wisdom thought that he is capable of shouldering the bigger responsibility. We do not find any infirmity in such decision making process. 9. Rattan Lal. On the other-hand we are clearly of the view that considering the educational qualification of Mr. Rattan Lal, the appropriate authority in its wisdom thought that he is capable of shouldering the bigger responsibility. We do not find any infirmity in such decision making process. 9. In view of what has been said above, we do not find any merit in this writ appeal and it is accordingly dismissed. Despite the dismissal of the appeal it is submitted by the counsel at the bar that he has failed the representation to the appropriate authority which has not been disposed of till date. Accepting the statement as correct, we direct that the appropriate authority is duty bound to dispose of such representation either rejecting or allowing by a speaking order, if not already disposed of. We make it clear that the appropriate authority shall dispose of the representation independently and un-influenced by any observation made by this court. Subject to the aforesaid observation the appeal is dismissed.