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J&K High Court · body

2002 DIGILAW 313 (JK)

Abid Bashir Tayubi v. State Of J. &K.

2002-10-09

R.C.GANDHI

body2002
This batch of petitions involves common questions of facts and law and are being disposed of by this common order. The petitioners in these petitions seek appointment on compassionate grounds in terms of the provisions of SRO 43 of 1994 dated 22nd February, 1994. Peculiar facts attendant to a few of the petitions are notice. 2. In SWP No. 1786/2001 the petitioner seeks his appointment on compassionate grounds as sub-Inspector of police on the strength of his academic qualifications, as his relation died in cross-firing, relating to militancy. In SWP No. 904/2000 relation of the petitioner died in 1988 and he applied for appointment on compassionate grounds in the year 1999. His request has been rejected vide order dated 9th October, 1999 by Chief Engineer, PHE on the ground of being belated and time barred. In SWP No. 2069/99 the petitioner seeks to quash order dated 13th November, 1999 which has been passed by the respondents in terms of the direction issued by the court in SWP No. 1335/97 directing the respondents to consider the case of the petitioner in that petition for appointment on compassionate grounds. The respondents considered the case of the petitioner and rejected on the ground that the relation died in 1987 when the petitioner was a minor and attained the majority on 1st April, 1994. He had applied for his appointment on compassionate grounds in June, 1994. Claim of the petitioner has been rejected being time barred by five years. In SWP No. 943 of 2002 brother of the deceased got employment on compassionate grounds. The petitioner, widow of the deceased, seeks to quash that appointment and her appointment in substitution. In SWP No. 1716/2000 the petitioner has been appointed on a class IV post on probation. He seeks his appointment on substantive basis. In SWP No. 2002/2000 the petitioner is a Diploma Holder in Engineering. He seeks his appointment on compassionate grounds as Junior Engineer on the analogy of one Aijaz Rashid appointed as Junior Engineer in similar circumstances. In SWP No. 907/2002 father of the petitioner died in harness on 3rd September, 1987. The petitioner applied for his appointment on compassionate grounds on 10th November, 1994. Claim of the petitioner has been rejected by the respondents as being time barred. His status as adopted son is also disputed. In SWP No. 815/2002 the petitioner has been appointed as Laboratory Bearer on compassionate grounds. The petitioner applied for his appointment on compassionate grounds on 10th November, 1994. Claim of the petitioner has been rejected by the respondents as being time barred. His status as adopted son is also disputed. In SWP No. 815/2002 the petitioner has been appointed as Laboratory Bearer on compassionate grounds. He seeks his appointment as Laboratory Assistant on the analogy of similar appointments stated to have been made by the respondents. 3. In all other petitions, the petitioners are either the son, daughter or widow of Government employee who have died in harness. Petitioners seek appointment on compassionate grounds, on the plea of being eligible and entitled to such appointment in terms of the family of the deceased employee and being dependent on him. 4. Heard learned counsel for the parties and perused the record of these petitions. 5. Persons seeking appointment on compassionate grounds shall be eligible in terms of Rule 2 of SRO 43 of 1994, which reads as under: "2. Application of Rules: These rules shall apply to the compassionate appointment of a person who is a family member of: (i) a Government employee who dies in harness other than due to militancy related action; (ii) a Government employee who dies as a result of militancy related action and is not involved in militancy related activities; (iii) a civilian who dies as a result of militancy related action not involved in militancy related activities and total income of the family from all sources does not exceed Rs. 3,500/- per month as assessed by the Revenue Officer not below the rank of an assistant Commissioner; (iv) a permanent resident Junior Commissioned Officer or non- Commissioned officer of the armed force or an officer of equivalent rank of the para military force who is killed in action connected with law and other duties within the State of Jammu and Kashmir or as a result of enemy action on the line of actual control." 6. Some of the petitioners also seek appointment against higher posts on the strength of their higher academic qualifications. Rule 3 of SRO 43 of 1994 is relevant in that behalf which is also extracted below: "3. Appointment under these rules. Some of the petitioners also seek appointment against higher posts on the strength of their higher academic qualifications. Rule 3 of SRO 43 of 1994 is relevant in that behalf which is also extracted below: "3. Appointment under these rules. -- (1) Notwithstanding anything contained in any rule of order for the time being in force regulating the procedure for recruitment in any service or posts under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of a non-gazatted service having qualification above Matriculation or to a Class IV post if the candidate has read upto Matric; Provided that the applicant is eligible and qualified or acquires eligibility and qualification within a period of six months from the date of death of the deceased person specified in rule 2; (2) Nothing in sub-rule (1) shall derogate from the powers of the Government in General Administration Department to appoint at its discretion a candidate to a higher post in the non-gazetted service if he/she is a family of a deceased Government employee or a civilian killed. 7. It may be mentioned here that in some of the writ petitions, the respondents have not filed their objections/replies/counter-affidavits. However, the learned counsel for the respondents opted to make oral submissions which was not objected to by the opposite counsel, for final disposal of these petitions. Those of the petitions which have not so far been admitted are hereby admitted to hearing and taken up for final disposal with the consent of learned counsel for the parties. Out of the pleadings of the parties, their oral submissions and in view of the rule position quoted above, the following points arise for consideration of this Court and disposal of these petitions: 1. Whether the petitioners, who have not filed their applications for seeking appointment on compassionate grounds, within six months are entitled to seek such appointment? 2. Whether those of the petitioners, who were minors at the time of death in harness of their relation and, on attaining the age of majority, filed applications for such appointments beyond 4/5 years, can be considered for such appointment? 3. 2. Whether those of the petitioners, who were minors at the time of death in harness of their relation and, on attaining the age of majority, filed applications for such appointments beyond 4/5 years, can be considered for such appointment? 3. Whether the petitioners, who have been appointed on compassionate grounds as Class IV employees and also those who are seeking appointment can claim appointments to higher posts on the ground of being possessed of higher qualifications? 4. Whether petitioners, who seek their appointment on higher appointments made by the respondents, are entitled to seek appointment on a particular post on the plea of parity? 5. Whether the claim of the petitioners for appointment on compassionate grounds being belated and time barred have been validly rejected by the concerned authorities? 8. An eligible dependent and a member of the family of a deceased Government employee in terms of Rule of 2 of SRO 43 of 1994 is required to submit his application for appointment on compassionate grounds within a period of six months from the date of death in harness of the deceased employee as specified in the proviso appended to Rule 3 of SRO 43 of 1994. The language of the rule is unambiguous and specific that an eligible person should file his application immediately on the death of the deceased employee or in terms of proviso attached to Rule 3 he can secure the eligibility within six months. Literally going to the letter of the law, any application filed beyond the period of six months is time barred and the respondents are within their right to reject such application as being time barred. 9. The issue of compassionate appointments came up before the Supreme Court in Haryana State Electricity Board v. Hakim Singh, AIR 1997 SC 3887 and their lordships observed as under:- "....widow of a deceased employee made an application almost twelve years after the death of her husband requesting for accomodating her son in the employment of the Board, but it was rejected by the Board. When she moved the High Court the Board was directed to appoint him on compassionate grounds. When she moved the High Court the Board was directed to appoint him on compassionate grounds. This Court upset the said directions of the High Court following two earlier decisions rendered by this Court, one in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : (1993 AIR SCW 2305), the other in Jagdish Prasad v. State of Bihar, (1996) 1 SCC 301. In the former, a Bench of two Judges has pointed out that `the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post muchless a post for the post held by the deceased. In the latter decision, which also was rendered by a Bench of two Judges, it was observed that `the very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. The learned Judges pointed out that if the claim of the dependent which was preferred long after the death of the deceased employee is to be countenanced it would amount to another mode of recruitment of the dependent of the deceased Government servant which cannot be encouraged, dehors the recruitment rules. (underlining supplied) This view has been reiterated by the Supreme Court in State of U.P. v. Paras Nath, AIR 1998 SC 2612, and Sanjay Kumar v. State of Bihar, AIR 2000 SC 2782. 10. In view of the mandate of the rule and the settled position of law, it is held that those of the petitioners who filled their applications for appointment on compassionate grounds after a period of six months from the date of death of the Government servant, are not held entitled to claim such appointments. The cases of those of the petitioners, who attained majority much after the period of six months is not distinct or different from such of the petitioners. 11. So far as the petitioners, who have Challenged the rejection of their claim for appointment are connected, their applications have been rightly rejected by the Respondents, being belated and time barred. The cases of those of the petitioners, who attained majority much after the period of six months is not distinct or different from such of the petitioners. 11. So far as the petitioners, who have Challenged the rejection of their claim for appointment are connected, their applications have been rightly rejected by the Respondents, being belated and time barred. So far as the claim of the petitioners in some of the petitions that they deserve to be appointed against higher posts keeping in view their higher academic qualifications is concerned, this proposition was in issue before the Letters Patent Bench of this Court in Tariq Ahmad Ganai v. State of J&K, 2001 SLJ 385 and the court observed as under:- "6. Sub-rule (2) vests discretionary powers with the Government under certain circumstances to appoint a candidate to higher post in a non-gazetted service if he/she is a family member of the deceased government employee or a civilian killed in militancy related action. Perusal of this provision of law indicates that it does not grant any substantive right to the effected person but only vests with the Government a discretion for appointment to the higher post despite the mandate of sub-rule (1) of Rule 3. The discretion is to be exercised by the Government under certain circumstances taking into consideration various factors. Sub-rule (2) referred to above does not create any enforceable right as held in case of `Hemant Kumar v. State of Rajasthan, 1998 (3) SLR 90 where in the petitioner claiming the appointment to higher post was appointed as LDC and dealing with the plea that he should have been appointed to the higher post, the court held: 12. I am of the view that the arguments raised by the counsel for the petitioners are not sustainable. The appointment on compassionate ground cannot be claimed as a matter of right. However, in the present case, since the petitioner has already been considered and given appointment on the post of LDC after death of his father on compassionate ground and having accepted the appointment offered to the petitioner way back in the year 1985, it is not open to the petitioner now to claim for higher post and more so after more than 12 years. Dealing with an identical proposition, the Supreme Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 observed as under:- " The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post muchless a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family of the financial destitution and to help it get over the emergency. 13. Offering compassionate employment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments in posts above classes III and IV is legally impermissible." In the light of the object of the Rules and the settled proposition of law, the claim of the petitioners for appointment against higher post on the basis of higher qualifications, or any other grounds, whatsoever, is not sustainable as the object is only to alleviate the financial distress by offering sustenance. 14. The claim for parity in appointments made in identical circumstances to the higher post is also not sustainable for the reason that if the State has done any favour to some person against the mandate of the Rules and the law laid down by the Supreme Court, the State cannot be directed to treat other persons alike against the concept of settled law. In such circumstances, it cannot be said to be a case of positive discrimination in terms of Article 14 of the Constitution of India. Before seeking parity, it is to be made out whether the order with which parity is sought, is legal and valid in law. In such circumstances, it cannot be said to be a case of positive discrimination in terms of Article 14 of the Constitution of India. Before seeking parity, it is to be made out whether the order with which parity is sought, is legal and valid in law. If such an order is passed against the rules, the parity can be claimed and thus it is not a case of discrimination. Dealing with such proposition, the Apex Court in Chandigarh Administration v. Jagjit Singh, AIR 1995 SC 705 held as under:- ".........Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case. It is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order.........." 15. The learned counsel for the petitioners have not made out that the orders with which they seek parity have been passed in accordance with the rules. In one of the petitions the widow of the deceased has sought to quash the appointment of brother of the deceased made on compassionate ground on the plea that the brother of the deceased was not dependent upon the deceased whereas the petitioner-widow was eligible to claim such appointment being the direct dependent of the deceased. The respondents will re-consider the case of the petitioner, providing opportunity to the appointee brother of the deceased, and pass appropriate orders within two months. 16. The respondents will re-consider the case of the petitioner, providing opportunity to the appointee brother of the deceased, and pass appropriate orders within two months. 16. In light of the above discussion, it is directed that wherever the petitioners have put in their claims for appointment on compassionate grounds within a period of six months in accordance with Rule 2 and proviso appended to Rule 3, the respondents shall consider their cases and offer them appointments within a period of two months, of course, strictly adhering to the rules and keeping in view the observations made in this judgment. 17. Rest of the writ petitions are dismissed, their claims being belated and/or not sustainable.