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2008 DIGILAW 423 (JK)

Bimal Indu Sharma v. State

2008-11-10

SUNIL HALI

body2008
1. Petition is admitted to hearing and with the consent of the learned counsel for the parties is taken up for final disposal. 2. The petitioner is brother of Varinder Sharma who was working as Sub Inspector in the J&K Police Department and died on account of road accident alongwith his wife. At the time of his death, Varinder Sharma was working as Sub Inspector in the J&K Police. Petitioner being the brother of the deceased sought his appointment on compassionate ground under SRO 283 of 1991. Petitioner claims that he is Law Graduate and was required to be appointed suitably against an available vacancy in the Police Department. 3. Petitioner was appointed as Assistant Sub Inspector (ASI) in the J&K Police Department on 28-4-1994. The contention of the petitioner in the writ petition is that his appointment order as ASI in the J&K Police was not suitable as required under rules more particularly when similarly situated persons were appointed as Sub-Inspectors in the J&K Police. Petitioner has placed on record the appointment order of respondents 4 to 6. Respondent -5 was appointed as Sub Inspector though he was only a Graduate. The same holds for other two private respondents. However, respondent-6 was appointed against the category of outstanding sports person. Rcspondent-4 was given the benefit of judgment passed by this Court dated 30-6-2000. 4. Respondents in their objections have stated that the petitioner was appointed as ASI in the J&K Police Department under SRO 43 of 1994 precisely on the ground that his brother and his wife met with an accident and expired on spot leaving behind two minor children, who were solely dependent upon the petitioner. It is also averred in the objections that the petitioner had also filed SWP No. 192/1994 in which a direction was issued to consider the case of the petitioner. It is stated that the case of the petitioner was considered for the higher post and rejected. The other contention raised by the respondents in the objections is that seeking appointment on a higher post, which is based on compassionate ground, cannot be claimed as a matter of right. The object to make compassionate appointment is only to alleviate the sufferings of the family. In essence they say that the petitioner cannot claim the higher post as matter of right. 5. I have heard the learned counsel for the parties. 6. The object to make compassionate appointment is only to alleviate the sufferings of the family. In essence they say that the petitioner cannot claim the higher post as matter of right. 5. I have heard the learned counsel for the parties. 6. At the out set, it is important to mention that the petitioners case was considered under SRO 283 of 1991. This fact is evident from the recommendation made by the Additional Chief Secretary (Home) for seeking appointment of the petitioner as Sub Inspector in the J&K Police Department. By the time the order of petitioners appointment is passed, SRO 43 came to be issued. The contention of the learned counsel for the petitioner is that Rule-4 of SRO 283 clearly envisages that a person can be appointed on compassionate ground being the member of the family against a suitable vacancy in the department. The legislature has used the word `shall only to indicate that a person must be adjusted suitably in commensurate with his qualification , provided the post against which he is seeking appointment is available at that point of time, even though his appointment is compassionate and made in relaxation of the Recruitment Rules. The qualification of the petitioner is a determining factor with regard to his adjustment against the post. Admittedly, the case of the petitioner was recommended by the Additional Chief Secretary (Home) for appointment to the post of Sub Inspector in the J&K Police Department. It seems that the post of Sub Inspector was available but for unknown reasons, the claim of the petitioner was not accepted. Petitioner also placed on record copy of appointment order of respondent-5, who was a graduate and was appointed as Sub Inspector in the J&K Police Department. It can safely be said that the petitioner being Law Graduate was entitled to be adjusted suitably against the post which was commensurate with his qualification. It is also not in dispute that the vacancy of Sub Inspector did exist in the Police Department against winch the petitioner could be adjusted. Respondent-5 also stands appointed as Sub Inspector even though he is only Graduate. 7. It is also not in dispute that the vacancy of Sub Inspector did exist in the Police Department against winch the petitioner could be adjusted. Respondent-5 also stands appointed as Sub Inspector even though he is only Graduate. 7. I find force in the submission of the petitioner that he was entitled to be considered against the post of Sub Inspector in the J&K Police Department; firstly on the ground that he can be adjusted suitably against the aforesaid post as the vacancy existed at that time. Secondly, similarly situated person i.e. respondent-5 has been appointed as Sub Inspector even though he has less qualification than the petitioner. The State action should not be arbitrary but on the other hand, must be in consonance with the rules of fair play. Respondents have nowhere in their reply stated that at the time of making appointment of the petitioner as ASI, there was no post of Sub Inspector available. Therefore, I allow this writ petition and direct the respondents that the petitioner be deemed to be appointed as Sub Inspector in the J&K Police from 28-4-1994 alongwith all consequential benefits. Let this exercise be completed by the State Government within a period of three months on receipt of the copy of this order.