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2005 DIGILAW 342 (JK)

Gh. Rasool Ganaie v. State

2005-12-02

BASHIR AHMAD KIRMANI

body2005
1. Petitioner, appointed as Sub Inspector in Police department on compassionate grounds after death of his father in 1996 during discharge of his duties as Sub Divisional Police Officer Pulwma, alleges that he was treated discriminately in so much as the respondents 6 and 7 whose fathers too were Dy.SPs in police department and died while on duty like that of petitioners father; were appointed as Dy.SPs on compassionate grounds, while he was only appointed as Sub Inspector. 2. Feeling aggrieved thereby he seeks direction against official-respondents for his appointment as Dy.S.P on the ground that being similarly situated with respondents 6 and 7, he too deserves to be appointed as such like them, particularly respondent no.7 who even though initially appointed as Sub Inspector was later appointed as Inspector. Materials appended with the petition are petitioners appointment order and those of respondents 6 and 7 as aforementioned. 3. In their objections official-respondents while admitting that petitioners father was killed while on duty, maintain that compassionate appointment is a prerogative of the Government, to be exercised in strict accordance with the relevant SRO, and that having accepted the employment the petitioner cannot turn around to dispute the same by claiming higher post, particularly because he has already been given relaxation in upper limit of the age. During course of their brief submission, learned counsel reiterated the contents of pleadings with reference to annexures. 4. I have heard learned counsel and considered the matter. Private respondents 6 and 7 who have not appeared despite notice have already been proceeded against in ex-parte vide interim order dated 24th Nov 2004. Respondent no.6 son of deceased Dy.SP who died in harness has been appointed under SRO 43 as Inspector, while as respondent no.7 initially appointed as Sub Inspector under similar circumstances in June 1992 has been appointed as Inspector in December 1992 in relaxation of rules/procedure, which as a matter of fact is relied upon by petitioner for raising the plea of discrimination. The memo of objections filed by official respondents does not contain anything to suggest as to what precisely was the reason for differential treatment to the petitioner as against respondents 6 and 7, and why he could not be considered for appointment against the post of Inspector as has been done in other two cases in relaxation of rules. The memo of objections filed by official respondents does not contain anything to suggest as to what precisely was the reason for differential treatment to the petitioner as against respondents 6 and 7, and why he could not be considered for appointment against the post of Inspector as has been done in other two cases in relaxation of rules. At the same time however, the petitioner too cannot claim appointment on a higher post and relaxation of rules in his case as a matter of right, as the competent authority cant be compelled to exercise discretionary power in a particular manner, unless the mode of exercise adopted is arbitrary, malafide or unreasonable. But even then the question of parity remains to be considered. At this stage it would be appropriate to notice the apex court judgment reported AIR 2001 SC 2415, wherein their Lordships considering question of parity in an almost similar situation was pleased to observe as under:- "2........when the State therefore thought it fit to change the post of respondents 3 and 4 and appointed them to the post of Sub Inspector of Excise, unless there is any justifiable reason exist, there is nor reason as to why the appellant should be treated with a hostile discrimination....." 5. In totality of circumstances cataloged above therefor coupled with the above quoted observation of Honble apex court, the writ petition is disposed of with an observation that official respondents may consider petitioners claim of parity with respondents 6 and 7, particularly respondent no.7. During such consideration they may accord a hearing to petitioner also, result whereof shall be communicated to him within two months from now, whereafter he shall be at liberty to agitate whatever cause survives or accrues to him as a result of such consideration. 6. The matter stands accordingly disposed of along with all connected CMP(s).