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2009 DIGILAW 610 (JK)

Imtiyaz Ahmed Malik v. State

2009-12-07

MUZAFFAR HUSSAIN ATTAR

body2009
1. In democratic country like ours, State government and its authorities as also the other organs of the State are under constitutional obligation to discharge their duties strictly in accordance with and in tune to mandate of the Constitution of India as also the Constitution of Jammu and Kashmir. In State like ours nobody is above law and all are duty bound to obediently and faithfully implement and enforce the law. In democratic setup no authority, howsoever, high belonging to any organ of the State, can do an act which is not permitted by Constitution and laws of the land, as act done contrary thereto will create an anarchical situation. 2. The State and its authorities are duty bound to deal with its citizens in accordance with the mandate of statute and other laws. If some of the citizens are similarly situated then they are to be considered for being given uniform treatment as they form a single class in law. 3. Petitioners father was Inspector in the State Police Organization and was killed in militancy related incident on 3rd Jan. 2002 while performing his duties. The petitioner invoked the jurisdiction of the State government for appointing him on compassionate grounds in accordance with the mandate of the policy decision of the State Government which is crystallized in J&K (Compassionate Appointment) Rules, 1994 (for short rules of 1994) and have been notified vide SRO 43 of 1994. The petitioner was offered post of constable which he refused to accept as after filing application for seeking appointment on compassionate grounds he had attained Bachelors degree. 4. The AIG(P) for Director General of Police send communication No. Pers-A-105/2003/34688 dated 6th Sept. 2007 to Financial Commissioner, Home Department J&K Govt, requesting therein that the case of the petitioner be reviewed and he be considered for being appointed against the post of Sub-Inspector in J&K Police in relaxation of recruitment rules, being militancy related case. It was also conveyed that the father of the petitioner had played vital role on anti militancy front while working with special operation group Anantnag and finally laid down his life in militancy attack at Bewoora Anantnag on 3rd of Jan. 2003 for supreme cause of the nation. The communication is reproduced as under :- "POLICE HEADQUARTERS J&K SRINAGAR The Financial Commissioner, Home Department J&K Govt, Srinagar. No. Pers-A-105/2003/34688 dated 6-9-2007 Subject: Appointment case of Sh. 2003 for supreme cause of the nation. The communication is reproduced as under :- "POLICE HEADQUARTERS J&K SRINAGAR The Financial Commissioner, Home Department J&K Govt, Srinagar. No. Pers-A-105/2003/34688 dated 6-9-2007 Subject: Appointment case of Sh. Imtiyaz Ahmad Malik S/o Late Inspector Bashir Ahmad Malik No. 3522/NGO 11th Bn under SRO-43 of 94. Sir, Kindly refer to Home Department letter No. Home/PB-III/253/04/Appt dated 27-02-2007, regarding the subject cited above. In this regard, I am directed to convey you that the candidate has shown non-willingness for the post of Constable and requested for appointment in Police Department against the post of Inspector under SRO-43/94, as he has completed his graduation now. It may be reiterated here that the deceased Inspector had played a vital role on anti-militancy front while working with special operation group Anantnag and finally laid down his life in a militant attack at Bewoora Anantnag on 03-01-2003 for supreme cause of the nation. As such, it is requested that the case of the beneficiary may kindly be reviewed and the beneficiary considered against the post of Sub-Inspector in J&K Police in relaxation of recruitment rules under SRO-43 of 1994, being a militancy related case. Yours faithfully, Sd/- AIG(P) For Director General of Police, J&K-Srinagar." 5. A document is placed on writ record which shows that ten persons were recommended for being appointed, as Sub Inspector of Police which includes petitioner and one Vikrant Singh S/o late Inspector Ravinder Singh Kotwal No. 446/NGO R/o H. No. 342 Amphalla Jail Road Jammu. Communication of AIG(P) For Director General of Police bearing No. Pers-A-25/2007/30390 dated 11th July 2008, reveals that recommendations were made for appointment of candidates on compassionate grounds, but out of those recommended the police headquarter received order No. Home -384-P(2008) dated 30th May 2008, according approval to appointment of one Vikrant Singh as Sub Inspector in relaxation of height measurement by 3-1/2 inches and also recruitment rules. Request was made dealing with other similar cases and policy was required to be made and criterion laid for deciding these cases. 6. Government order No. 1285-GAD of 2008 dated 30th Sept. 2008 was passed vide which the sanction was accorded for appointment of petitioner as junior assistant in the pay scale of 3050-4910 in J&K Civil Sectt. in relaxation of rules. 7. The respondents had issued order Nos. 6. Government order No. 1285-GAD of 2008 dated 30th Sept. 2008 was passed vide which the sanction was accorded for appointment of petitioner as junior assistant in the pay scale of 3050-4910 in J&K Civil Sectt. in relaxation of rules. 7. The respondents had issued order Nos. 261 of 2004 dated 30th July 200, Government order No. Home/200 (P) of 2005 dated 24.05.2005, and Government order No. Home-471 (p) of 2007 dated 01.10.2007, whereby sanction was accorded to the appointment of beneficiaries of said orders in relaxation of rules for their appointment as ASI, SI and Inspector respectively, under SRO 43 of 1994. Petitioner being aggrieved of the action of respondents of subjecting him to invidious discrimination, accordingly, filed this petition bringing all these facts to the notice of the court. On notice, objections were filed and thereafter reply affidavit is also filed. In the objections/reply affidavit, the claim of the petitioner is resisted on the ground that the appointment orders mention whereof is made hereinabove have not been challenged by the petitioner. It is further pleaded that the petitioner was offered post of constable under SRO 43 of 1994, but on his refusal he was appointed as junior assistant. It is further pleaded that the basic purpose of the rules notified vide SRO 43 of 1994 is to provide sustenance to the family of the deceased employee and that none of the legal rights of the petitioner have been infringed. 8. Ld counsel for the parties argued in tune with their respective pleadings. 9. True it is, that an appointment on compassionate grounds is being offered to one of the family members of the deceased employee to ensure that the dependants of the deceased employee do not totter at the brink of starvation. 10. The Honble Supreme Court and this Court has in such type of cases ruled that a candidate who seeks appointment on compassionate grounds cannot stake claim to the post of his choice. A post available with the government is a public property. When same is to be filled up, then all eligible candidates are to be considered for being selected/appointed against said post in accordance with the mandate contained in Articles 14 and 16 of the Constitution of India. A post available with the government is a public property. When same is to be filled up, then all eligible candidates are to be considered for being selected/appointed against said post in accordance with the mandate contained in Articles 14 and 16 of the Constitution of India. The State government and its authorities normally have no authority or power to make appointment to the public post without considering all eligible candidates for such selection/appointment. A deviation to this salutary rule of making appointment to public post is recognized when appointment is made on compassionate grounds. The rules notified vide SRO 43 of 1994 which provide the complete mechanism for making appointment on compassionate grounds have received judicial acceptability. The appointments by government are to be made in accordance with the mandate of the rules of 1994. The government in peculiar circumstances of a case having power to relax the rules in terms of rules of 1994 can make appointment in relaxation of rules also. The government and its authorities are duty bound to give uniform treatment to the similarly circumstanced persons. 11. The petitioner has referred to government orders in the writ petition, mention whereof is made in this judgment, to indicate that the candidates similarly circumstanced have been appointed against post(s) of ASI, S.I and Inspector respectively. Petitioner claims to be similarly circumstanced with such persons and the writ petition is filed on the ground that still he has been subjected to invidious discrimination. 12. Respondents in their reply affidavit have not dealt with the case set up by the petitioner in his writ petition, that he was and is similarly circumstanced with the candidates in whose favour orders supra have been issued by the government by appointing them in police department against post(s) of ASI, SI and Inspectors respectively. 13. Instead of dealing with the claim of petitioner of being similarly circumstanced with such persons and having been dealt with dis-similarly, the respondents in the reply affidavit/objections have strayed by beating about the bush. Respondents could have shown by giving details and producing the record that the petitioner was not similarly circumstanced with the above said persons who are beneficiaries of above referred orders. 14. Respondents could have shown by giving details and producing the record that the petitioner was not similarly circumstanced with the above said persons who are beneficiaries of above referred orders. 14. Once it is pleaded and alleged in the writ petition that petitioner has been subjected to invidious discrimination which is infringement of constitutional guarantees as contained in Article 14 and 16 of the Constitution, the burden shifts on the respondent-state/authorities to satisfy the court that none of the rights guaranteed under said articles of Constitution have been infringed in respect of petitioner. 15. Instead of justifying their action, the respondents in the counter affidavit/objections have stated that the persons in whose favour the orders, referred to in this judgment, have been issued appointing them to various posts in police department having not been made party respondents, the writ petition is not maintainable. While dealing with the submissions of the petitioner that Sh. Vikrant Singh Kotwal, who was recommended along with the petitioner, for being appointed to the post of Sub Inspector, having been appointed in relaxation of rules, by denying the same treatment to petitioner he has been discriminated against, the respondents have simply said that it is matter of record. In other words it is deemed to be admitted that petitioner and Sh. Vikrant Singh Kotwal were similarly situated thus required to be given same and similar treatment. 16. The contention that the beneficiaries of the government orders have not been made party respondents is no requirement of law in such type of writ petitions. Petitioner is not aggrieved of action of the Government by appointing those persons on compassionate grounds in relaxation of rules so they were not required to be impleaded as party in the writ petition. The petitioner has referred to their cases in the writ petition only to show that he forms class with them, but has been treated dis-similarly and in process violating his constitutional rights as guaranteed in Articles 14 and 16 of the Constitution. 17. Sh. Vikrant Singh Kotwal, and petitioner who were recommended for being appointed as Sub Inspectors ex-facie form one single class. Petitioner could have not been thus discriminated by not appointing him as Sub Inspector like Sh. Vikrant Singh Kotwal in relaxation of rules. 18. The respondent-state and its authorities as already stated are duty bound to give uniform treatment to the persons who are similarly situated. Petitioner could have not been thus discriminated by not appointing him as Sub Inspector like Sh. Vikrant Singh Kotwal in relaxation of rules. 18. The respondent-state and its authorities as already stated are duty bound to give uniform treatment to the persons who are similarly situated. 19. For the reasons mentioned and discussions made in this judgment, it is held that petitioner is similarly situated with Sh. Vikrant Singh Kotwal and requires to be given same treatment in law which has been given to said Sh. Vikrant Singh Kotwal and those persons reference to whom has been made in this judgment. 20. For the foregoing reasons, this writ petition succeeds and is accordingly allowed. By issuance of writ of mandamus, respondents are directed to give same and similar treatment to the petitioner in the matter of appointment on compassionate grounds as has been given to Sh. Vikrant Singh Kotwal and other persons details of whom have been given in this judgment. Respondents to accord consideration to the case of the petitioner within a period of two months from the date copy of this order is served on them and to pass appropriate orders in accordance with the mandate of this judgment.