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2001 DIGILAW 84 (JK)

Vinod Kumar Raina v. State

2001-04-04

T.S.DOABIA

body2001
JUDGMENT 1. Petitioner has filed this writ petition seeking directions to respondents 1 to 3 to give him equal treatment as meted out by them to respondent no. 4 in terms of SRO 43 of 1994. According to petitioner he and respondent no. 4 are similarly situated, therefore respondents 1 to 3 would not be justified in discriminating between both of them. 2. Father of the petitioner who was an ex-serviceman was killed by the militants in Kashmir valley on the intervening night of 23/24 September, 1995. He was kidnapped on that night and his dead body was found on 24th September, 1995 at Bharamshah National Highway near Khanabal Anantnag. He was serving with the Director of Sainik Welfare i.e. respondent no. 3 at Srinagar. In view of this development petitioner left the valley and migrated to Jammu. 3. After the death of his father and family having migrated to Jammu they claim to have approached the authorities for appointment of the petitioner as Junior Assistant. As according to him respondent no. 4 was appointed as such and he was also similarly situate like him (petitioner). 4. Case of the petitioner was recommended by the Director, Sainik Welfare for his appointment as Junior Assistant to the Commissioner, Sainik Civil Liaison, Sainik Welfare Department. According to petitioner he was appointed as Class-IV employee by the General Administration Department of the State Government vide Order No. 1893-GAD of 1997 dated 04.12.1997 and was posted with the Chairman of the Board constituted under J&K Public Safety Act, Jammu. Though the petitioner was not inclined to accept this offer but due to compelling circumstances he accepted the same under protest. Representations were made for engagement of the petitioner as Junior Assistant but of no avail, hence this writ petition fact remains that post was created and sanction was accorded vide Govt. Order No. 1893-GAD of 1997 dated 04.12.1997. Annexure E to the writ petition. 5. Respondents were put to notice and thereafter writ petition was admitted. Stand of respondent no. 2 is that this writ petition is not maintainable for want of non-joinder of State of J&K as party as also because no fundamental legal or statutory right of the petitioner has been violated. Annexure E to the writ petition. 5. Respondents were put to notice and thereafter writ petition was admitted. Stand of respondent no. 2 is that this writ petition is not maintainable for want of non-joinder of State of J&K as party as also because no fundamental legal or statutory right of the petitioner has been violated. Their further specific case is that when case of the petitioner was considered for compassionate appointment post of Junior Assistant was available in Sainik Welfare Board but he was found ineligible. Reason being, that he had passed the internal examination of PUC which did not satisfy the eligibility criteria for the said post. They further claim that once petitioner had accepted his appointment as Orderly in the year 1997 he is estopped from challenging the same that too after three years. In this view of the matter petitioner is not entitled to any relief as claimed in the writ petition. 6. Learned counsel for petitioner submitted that his client is entitled to the relief claimed in the writ petition as Junior Assistant in terms of SRO 43 of 1994 and by denying the said benefit not only discrimination has been perpetuated on the petitioner vis-a-vis respondent no. 4 but he has been denied fundamental rights in the matter of grant of appointment on compassionate grounds under the relevant SRO. He placed reliance on a decision of this court reported in 1999 KLJ 47, Anmolak Singh vs. State of J&K and Others. 7. On the other hand learned counsel for respondents 1 to 3 have objected to the maintainability of the writ petition as also stated that in case employment did not suit to the petitioner he should have declined the same once he accepted it now he should not be permitted to question it. Thus they have prayed for dismissal of the writ petition. 8. Before coming to the merits of this case purpose of enacting SRO 43 of 1994 to be kept in view. This SRO has been enacted with a view to provide immediate relief to the family of the deceased employee who dies in harness with a view to ensure that immediate employment is provided in so that family is not left high and dry. This SRO has been enacted with a view to provide immediate relief to the family of the deceased employee who dies in harness with a view to ensure that immediate employment is provided in so that family is not left high and dry. It is as gesture of goodwill, a concession and out of way benefit allowed to the family of the deceased to take them out of the penury in which family is placed. It is neither an alternate source of employment nor can a person like petitioner say that he should be given a job of his choice. Infact provisions made in the SRO 43 of 1994 is in the nature of exception to the general rules i.e. Rules governing recruitment under the relevant recruitment and promotion rules. It may be appropriate to mention here that person like petitioner if he thinks that job offered on compassionate basis does not suit him or is below his dignity, he can straightway say that same is not acceptable to him as also he can compete in open market alongwith other eligible candidates for his being employed to a job of his liking. 9. So far plea of discrimination is concerned no benefit can be derived by the petitioner. For taking this view reference can usefully be made to the decision of Supreme Court of India reported in AIR 1995 SC 705, Chandigarh Administration and Another vs Jagjit Singh and Another. While considering Article 14, it was observed that a particular order passed by Authority in case of similarly situated another person can never be ground for issuing writ in favour of petitioner. What is relevant in the context of the present case is extracted herein below:- "Each case must be decided on its own merits, factual and legal in accordance with actions of the authorities cannot be equated to the judgements of the Supreme Courts and High Courts nor they can be elevated to the level of the precedents as understood in the judicial world". 10. In 1996(8) SLR 314, Varinder Kumar petitioner vs. The State of Punjab and Others what is relevant for the purpose of present case is extracted herein below:- "As already observed, the petitioner cannot claim to be appointed as Naib Tehsildar. He cannot claim any right to a particular post. Under the rules, he is only entitled for employment under the State Government. He cannot claim any right to a particular post. Under the rules, he is only entitled for employment under the State Government. The petitioner has been offered the post of Kanungo to which he was found sustainable. He cannot claim the post of Naib Tehsildar to which he was not found suitable. Therefore, the petitioner cannot claim any higher right than the right to employment under the State Government on compassionate grounds. The appointment of Kanungo is also under the State Government. I do not, therefore find any illegality or informity in the order of the Commissioner dated 6.11.1990 (Annexure P-18) There are no grounds to interfere with the same". 11. These are few instances otherwise there are host of authorities on the plea of discrimination being not available in the matter of compassionate appointment See State of Himachal Pradesh and Ors. Vs. Romesh KumarSharma, 1995(6) SLR 63, P.A. Vijayan vs. State of Kerala, 1997(4) SLR 566, State of Harayana vs. Naresh Kumar Bali, 199(4) SCC448, Neeraj Bari vs. State of J&K, 1998(4) SCT 355, Tariq Ahmed Ganai vs. State of J&K and Others, 1998 KLJ 602, Umesh Kumar Nagpal vs. State of Haryana and Others 1994 (4) SCC133, State of Bihar and Others etc vs. Samsuz Zoha etc, AIR 1996 SC 1961. In the face of aforesaid decisions of the Supreme Court of India and on examination of the decision in 1999 KLJ 47 (supra), it is felt that case of the petitioner is not improved in any manner whatsoever as such no benefit can be derived by him in this writ petition. On the other hand in exactly identical situation after considering the case law on the subject in SWP No. 4/98, Vijay Kumar Vs. State of J&K & Another, writ petition was dismissed on 25.05.2000, that judgements squarely covers the present case. 12. No other point is urged. 13. In view of the aforesaid discussion, there is no merit in this writ petition which is accordingly dismissed with no orders as to costs.