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2008 DIGILAW 246 (JK)

Parvaiz Ahmad Bhat v. State Of J&K

2008-06-05

K.S.Radhakrishnan, MOHAMMAD YAQOOB MIR

body2008
Per M. Yaqoob Mir, J. 1. Appellant's claim for appointment against the post of Sub-Inspector on compassionate grounds has not been acceded to, instead, has been appointed as Assistant Sub Inspector (ASI). After having accepted the appointment, has joined but has thereafter filed the writ petition bearing SWP 810/2000 with the prayer that he be appointed as Sub-Inspector. The petition stands dismissed by the writ court vide its judgment dated 6.6.2006. 2. Aggrieved thereof, instant appeal has been filed. Admitted position is that late Ghulam Rasool Bhat, father of the appellant was serving as Police Inspector who got killed in a firing incident on 19.12.1991. Appellant approached the respondents for being appointed in the police Department on compassionate grounds against the post of Sub-Inspector in terms of SRO 283 of 1991. Inspector General of Police vide U.O. No. PHQ/Pers.A402/92/33201 dated 20.8.1993 had recommended appointment of the appellant against the post of Sub Inspector as a welfare measure in relaxation of educational qualification and recruitment rules. Matter remained pending, forcing the appellant to invoke the writ jurisdiction by filing OWP no. 575/1997, which came to be disposed of vide order dated 13.8.1998 with the direction to the respondents to give due consideration to the recommendation made by the Inspector General of Police vide U.O. No. PHQ/Pers. A402/92/33201 dated 20.8.1993 and to pass appropriate orders in accordance with the rules. 3. The respondents vide Government Order No. 293(B) dated 8.7.1999 have accorded sanction to the temporary appointment of the appellant as Assistant Sub Inspector in Jammu and Kashmir Police in relaxation of norms on compassionate grounds in terms of SRO 43 of 1994. [Refer JKS Software JKS/460] 4. The first contention of the appearing counsel for the appellant is that his case should have been considered in terms of SRO 283 of 1991 but the contention on scrutiny is found to be devoid of any force. Admittedly, occurrence is of 1991, process has been initiated under SRO 283 of 1991 but matter remained pending until 1999. In the meantime, SRO 43 of 1994 came into force superseding the SRO 283 of 1991, but position of the appellant has been saved by sub clause (c) of Rule 9 of the said SRO, which is reproduced hereunder: Rule 9. Repeal and Saving: The Jammu and Kashmir Appointment on Compassionate Grounds Rules, 1991 are hereby repealed. Provided that such repeal shall not...... Repeal and Saving: The Jammu and Kashmir Appointment on Compassionate Grounds Rules, 1991 are hereby repealed. Provided that such repeal shall not...... "(c) Affect the cases whether pending on the commencement of these rules or the cases where death of the person specified in rule 2 occurred due to militancy related action prior to the commencement of these rules and all such be dealt with in accordance with the provisions of these rules." 5. Plain reading of the rule envisages that when the case was pending on the commencement of these rules, is to be dealtwith in accordance with the provisions of these rules as has been rightly done by the respondents. 6. As per Rule 3 of Compassionate Appointment Rules of 1994, compassionate appointment is to be made against a vacancy in the lower rank of non-gazetted service having qualification above matric or to a Class IVth post if the candidate has read upto matric. Sub Rule 2, however, saves the power of the Government to appoint at its discretion a candidate to higher post. The Government after considering the case of the appellant in its discretion has appointed the appellant in relaxation of education qualification as Assistant Sub Inspector same is availed by joining the service. It is not now open to turn around and to claim appointment against the higher post. 7. Appearing counsel for the appellant contended that some of the candidates have been appointed against the higher posts whereas, appellant has been discriminated. Buttressing the submission referred to the Government Order No. Home-185 dated 8.6.1992, whereunder one Tanveer Jeelani has been appointed as Sub Inspector in relaxation of qualification bar and normal procedure. By another Government Order No. 535 dated 19.7.1996 one Shri Shelly Singh has been appointed as Inspector in Jammu and Kashmir Police Department in relaxation of qualification age bar. Again vide Government Order No. 280 dated 20.7.1998 Shri Rayees Azam Qureshi has been appointed as Assistant Sub Inspector on compassionate grounds. Again vide Government Order No. 09 dated 11.1.1999 one Shri Feroze Ahmad Khan has been appointed as Assistant Sub Inspector in Jammu and Kashmir Police in relaxation of the recruitment rules. Again vide Government Order No. 280 dated 20.7.1998 Shri Rayees Azam Qureshi has been appointed as Assistant Sub Inspector on compassionate grounds. Again vide Government Order No. 09 dated 11.1.1999 one Shri Feroze Ahmad Khan has been appointed as Assistant Sub Inspector in Jammu and Kashmir Police in relaxation of the recruitment rules. By referring to these orders, appearing counsel contended that Inspector General of Police had recommended the case of the appellant for appointment against the post of Sub Inspector without any reason, same has not been accepted, instead has been appointed against the post of Assistant Sub Inspector. The submission of the appearing counsel for the appellant looses significance. By referring to the Government orders, it is clear that the Government has appointed the dependent family members of the deceased police officers as Assistant Sub Inspector, Inspector and Sub Inspector on the basis of the suitability, respectively by exercising the discretion as vest in them pursuant to Sub Rule 2 of Rule 3 of the compassionate appointment Rules of 1994. 8. Writ Court after referring to the law as laid down has appreciated the contentions of the appellant correctly, question of claiming parity is beyond comprehension when the appointment is on compassionate grounds, the judgment reported in AIR 1995 SC 705 as relied by the writ court is quite applicable and has been correctly followed. Para 8 of the judgment is required to be quoted hereunder: "...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 grounds 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, factual 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 precedent, 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 learned Writ Court has correctly appreciated the position of the petitioner having joined as against the post of Assistant Sub Inspector, without any protest and has correctly quoted the observation as made by the Division Bench of this Court reported in SLJ 2001, page 385 that "when appointment is made against the post and the petitioner accepts the appointment, he cannot claim appointment against higher post and is estoppel from making such claim. It shall be quite relevant to quote the observation as made by the Apex Court reported in AIR 1979 SC page 621: "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" 10. Contention of the appearing counsel for the appellant that the appellant has been discriminated is not correct, this contention as raised has been correctly answered by the Writ Court. Appointment on compassionate grounds against the post is governed by the Compassionate Rules which provide for appointing a person against a vacancy in the lowest rank of non- gazetted service. Contention of the appearing counsel for the appellant that the appellant has been discriminated is not correct, this contention as raised has been correctly answered by the Writ Court. Appointment on compassionate grounds against the post is governed by the Compassionate Rules which provide for appointing a person against a vacancy in the lowest rank of non- gazetted service. The same position is controlled by the discretion for appointing a person against a higher post. Appellant has been given proper treatment as he was in eligible for being appointed against the post of Assistant Sub Inspector. His education qualification has been relaxed and thereafter appointed against the said post, so question of discrimination is not forthcoming. 11. It is true that the desire of the appellant of being appointed against the post of Sub Inspector coupled with the recommendation of the Inspector General of Police could not fructify in the best wisdom of the Government. The appellant cannot claim vested right of being appointed against the post of Sub Inspector. 12. Appellant has no right to claim appointment to a particular post, it is the domain of the executive authority to appoint a deserving person purely on compassionate grounds against the available suitable post. 13. Viewed thus, the learned Writ Court has correctly appreciated the factual as well as legal position and has thereafter passed a well reasoned judgment. No illegality is noticed. 14. Appeal is found to be devoid of merit. Dismissed as such.