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2003 DIGILAW 276 (JK)

Qazi Mohd. Ashraf v. State Of J. &K.

2003-09-12

R.C.GANDHI

body2003
Petitioner, by means of the writ petition, seeks issuance of writ of Mandamus Commanding respondents 1 to 3 to consider the case of the petitioner for appointment against the post, of Legal Assistant and to create a supernumery post till the post is formally created and further not to consider respondents 5 to 7 for their appointment against the post of Legal Assistant, being ineligible. 2. Petitioner has averred in the petition that father of the petitioner while working as Sanitary Inspector with respondent No.2 died in harness. The petitioner was appointed as Junior Assistant, vide Order No. 907 of 2000 dated 19.10.2000. In compliance to the Court direction dated 29.11.1999 passed in SWP No. 1779-99, the post of Senior Assistant was redesignated and the petitioner was permitted to work against the post in his own pay and grade. 3. Petitioner a law graduate was a practicing lawyer before Joining of the service on the demise of his father. He made a representation that the post of Legal Assistant in the higher grade should be created and the petitioner be appointed against that post being possessed of Degree in Law. It is also submitted that the respondent has written to the Respondent No. 1 to create a post of Legal Assistant and the Under Secretary to Govt, Housing and U.D Department has written to Commissioner, Srinagar Municipal Corporation, vide Communication dated 7.8.2003 that respondents Municipal Authorities must take decision themselves for creation of the post. 4. Respondents have filed the objections, stating therein that the petitioner was appointed as Junior Assistant under SRO 194 of 1989 dated 18.5.1989 read with SRO 283 of 1991 dated September, 1991 on compassionate grounds. The appointment has been accepted by the petitioner and it does not lie in his mouth now to contend that he should be appointed as Legal Assistant on compassionate grounds. There is no post of Legal Assistant in the Municipality, therefore, the relief prayed for cannot be granted to the petitioner. It is also stated that answering respondent has recommended to the government for creation of post of Legal Assistant and as and when it is created by the respondent No. l, the petitioner shall be considered alongwith all eligible incumbents against the post. 5. Heard the learned counsel for the parties mid perused the record. 6. It is also stated that answering respondent has recommended to the government for creation of post of Legal Assistant and as and when it is created by the respondent No. l, the petitioner shall be considered alongwith all eligible incumbents against the post. 5. Heard the learned counsel for the parties mid perused the record. 6. The petitioner has been offered appointment as Junior Assistant on compassionate grounds on the demise of his father. His claim for appointment against higher post in terms of the provisions of SRO 194 of 89 read with SRO 283 of 91 is not tenable. Petitioner has relied upon Rule 4 of SRO 283 of 1991 for his appointment against the post of Legal Assistant. Rule 4 of SRO 283 of 91 envisages that the Competent authority may consider the appointment against a suitable vacancy in the department and where no suitable vacancy is available, the competent authority may forward the case to the General Administration Department recommending adjustment against any other suitable vacancy in any other department. It nowhere suggests appointment on compassionate grounds, against higher vacancy or commensurate to the qualification. 7. Petitioner has accepted the compassionate appointment without any protest. Law relating to compassionate appointment has been settled by the Apex Court in various judgments holding that the compassionate appointment is offered only to mitigate the uncalled for sufferings in terms of financial position of the dependant on the demise of the employee. 8. The State has promulgated rules for compassionate appointment but so far as the question of mitigating the financial crises on the demise of the employees is concerned, it is to be seen that under the service rules, the family of the deceased is entitled to get full pay. for seven years, therefore, there is no question of any financial hardship. Since this point has not been debated by the parties, thereby it is left open. 9. The similar proposition on facts and law was before the Letters Patent Bench of this Court in LPA No. 86 of 1998 titled Tariq Ahmad Ganani v. State of J&K, 2001 SLJ page 385, wherein it has been observed in para 6 of the judgment as under: -- "........ 9. The similar proposition on facts and law was before the Letters Patent Bench of this Court in LPA No. 86 of 1998 titled Tariq Ahmad Ganani v. State of J&K, 2001 SLJ page 385, wherein it has been observed in para 6 of the judgment as under: -- "........ Sub- Rule (2) vests discretionary power 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) 90 wherein the petitioner claiming the appointment to the higher post was appointed as LDC and dealing with the plea that he should have been appointed to the higher post, the court held:---- "I am of the view that the arguments raised by the counsel for the petitioner 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". 10. The plea of the learned counsel for the petitioner is also not sustainable in. view of the aspect that having accepted the appointment, the petitioner has waived off his right. This was also the plea of the learned counsel for the petitioner in the aforesaid case and the court while dealing this plea in para 10 of the judgment observed as under: -- "......... Mr. view of the aspect that having accepted the appointment, the petitioner has waived off his right. This was also the plea of the learned counsel for the petitioner in the aforesaid case and the court while dealing this plea in para 10 of the judgment observed as under: -- "......... Mr. Qadri, has, also submitted that the appellant has accepted the post without any protest, and therefore, has waived his right to approach the court for seeking direction for his appointment as ASI. Mr. Beigh, has in rebuttal submitted that the case of the appellant was submitted to the Governor for his appointment as ASI and what happened thereafter is not known. There is substance in the plea of Mr. Qadri, that having accepted the post of Head Constable the appellant has waived his right and cannot turn back to seek the relief prayed for. Waiver of right, has been explained by the Supreme Court in case". M.P. Sugar Mills v. State of U.P.", AIR 1979 SC 621 holding that:--- "Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge." The appellant has abandoned right by conduct on accepting the appointment and thus has waived his right." 11. Specific stand has been taken by the respondents that there is no post available against which the petitioner can be considered. For consideration, the existence of post is must. No direction can be issued unless there is a post. This proposition of law also has been settled by the Supreme Court in case titled Himachal Road Transport Corporation v. Dines Kumar, AIR 1996 Supreme Court 2226, holding that: -- " We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders, dated 27.3.1995 and 6.3.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of the public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised." 12. It will be a gross abuse of the powers of the public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised." 12. For the aforesaid reasons, no case for admission of the petition is made The petition is, accordingly, dismissed.