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2007 DIGILAW 76 (JK)

Aashiq Hassain Shah v. State

2007-05-14

MANSOOR AHMAD MIR

body2007
1. One Abdul Hamid Shah was working as Block Supervisor in the respondent department and died while in service. Petitioner-son of deceased approached respondents for appointing him on compassionate grounds and came to be appointed as Shepherd in the respondent department vide order No.48-HSD of 2005 dated 1st September, 2005-annexure-A and he accordingly accepted the order and joined the service. After lapse of more than six months he filed writ petition and sought indulgence of this court for directing his appointment against the post of Stock Assistant in the pay scale of Rs.3050-4910 instead of Shepherd on the grounds taken in the writ petition. It is also the case of the petitioner that similarly situated persons came to be appointed against the post of Stock Assistant. 2. Respondents have filed reply and resisted the claim. 3. Heard. Perused. Considered. Admit. With the consensus of learned counsel for the parties, this petition is taken up for final disposal. 4. SRO 43 provides an exception just to save the dependents of the deceased government employee from vagrancy and destitution. It is just to alleviate the financial distress by offering sustenance. The appointment on compassionate grounds is a discretionary domain of executing authority. Petitioners-dependents cannot claim such as a matter of right. 5. Apex Court in a case titled Haryana State Electricity Board Vs. Krishna Devi, 2002(10) SCC 246 reported in 2002(10) SCC 246 has observed that it is well settled that appointment on compassionate ground is given only on pure humanitarian consideration and no appointment can be claimed as a matter of right and the main object is to provide immediate financial help to the family of the deceased employee. It is profitable to reproduce relevant portion of para-7 of the said judgment herein: "It is well settled that employment on compassionate ground is given only on pure humanitarian consideration and no appointment can be claimed as a matter of right. The main object was to provide immediate financial help to the family of the deceased employee. It is also well settle that employment under compassionate ground cannot be made in absence of rules or instructions issued by the Government or any public authority." 6. This court in case titled Saraj Singh v. State of J&K, reported in 1999 SLJ 396, has held as under: "11. It is also well settle that employment under compassionate ground cannot be made in absence of rules or instructions issued by the Government or any public authority." 6. This court in case titled Saraj Singh v. State of J&K, reported in 1999 SLJ 396, has held as under: "11. Since the petitioner has no vested right to be appointed on compassionate ground, he cannot ask for a particular post. Further, it is wrong to suggest that such appointments should be made without considering the financial condition and the antecedents of the candidate seeking appointment because it is only a person in distress who has to be shown compassion and not a person who seeks appointment to gain an official status. Moreover, the petitioner has not pleaded the circumstances in which the private respondent were appointed against higher post on compassionate grounds, in the absence of which it is not possible to make a comparison." 7. This Court has also taken the same view in a judgment delivered by Division Bench of this Court in case titled Tariq Ahmad Ganai Vs. State of J&K reported in SLJ 2001 page 385. The Court has held that a person appointed on compassionate grounds cannot claim appointment to a higher post. The rule does not vest any substantive right to the affected person. It is profitable to reproduce para-6 of the said judgment herein:- "6. 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 I 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 Vs. 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 Vs. State of Rajasthan" reported in 199-8 (3) SIR 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."" 8. Apex Court in case titled Chandigarh Administration and another Vs. Jagjit Singh and another, reported in AIR 1995 SC 705, has observed that parity cannot be claimed while applying for appointment on compassionate grounds. Courts cannot pass directions in order to direct State authority to appoint a person on a higher post. It is profitable to reproduce relevant portion of para-8 of the said judgment herein: "8. ...........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. ................ 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. ................ In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, tactual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises). 9. The petitioner has accepted the appointment as Shepherd and he is now estopped from making any further claim. Apex Court in a case titled M.P. Sugar Mills v. State of U. P., reported in AIR 1979 SC 621 has observed that when an appointment is made against any post and the petitioner accepts the appointment, he cannot claim appointment on a higher post and is estopped from making such claim. 10. Applying the test to the instant case, this petition merits to be dismissed. Accordingly, the writ petition is dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated.