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2010 DIGILAW 436 (JK)

Khalid Hamid Sohail v. State Of J&K

2010-08-11

Mansoor Ahmad Mir

body2010
1. One Sh. Abdul Hamid Sohail was working as a Patwari in the Revenue Department, who died in a vehicular accident on 2.6.1996 leaving behind widow, four sons and two daughters. The petitioner approached the respondents for appointing him on compassionate grounds, came to be appointed against Class IV post vide Order No.FC(NG)03 of 2001 dated 4.1.2001. The petitioner after accepting the order joined the service. After lapse of more than one year he has filed this writ petition for directing the respondents to appoint him against the post of Patwari on the grounds taken in the writ petition. 2. It is contended in the writ petition that petitioner was eligible and entitled to be appointed against the post of Patwari, but came to be appointed against Class IV post which is against the aim, object and concept of appointments on compassionate grounds. Further it is contended that one Mohd. Firdous also came to be appointed as a Patwari on compassionate grounds, but petitioner came to be discriminated. 3. Respondents have filed the reply and resisted the petition on the grounds taken in the reply. 4. It is averred in the counter that the education qualification of petitioner was under matric in the year 1996, which he had also mentioned in his application form (annexure R1) submitted for such appointment. They have also annexed photostat copy of the School Leaving Certificate (annexure R2) which also indicates that the petitioner has passed 9th class examination during the Session 1996. Further it is contended that in terms of SRO 43 of 1994 appointment on compassionate grounds is to be offered against lowest rank post. 5. The petitioner has not filed any rejoinder. 6. It is apt to reproduce rule 3 of SRO 43 herein : "3. Appointment under these rules: - (1) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of a non-gazetted service having qualification above Matriculation or to a class IV post if the candidate has read upto Matric." 7. In terms of the said Rule the applicant must be eligible at the time of death of employee or must attain eligibility within six months. In terms of the said Rule the applicant must be eligible at the time of death of employee or must attain eligibility within six months. Admittedly, the father of petitioner died on 2.6.1996 and at that relevant point of time the academic qualification of petitioner was under matric, thus he could not have been appointed against any higher rank. It is averred in the writ petition that petitioner qualified the matriculation examination in the year 2000, but he has not filed any marks card or original certificate indicating such fact. Thus on this count also the writ petition merits to be dismissed. 8. 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 the discretion of the Government and is to be made in the lowest rank of a non-gazetted service. Petitioners-dependents cannot claim such as a matter of right. 9. The petitioner came to be appointed against the post of Class IV, he accepted the same and now cannot seek a direction to the respondents to appoint him against a higher post. 10. The Apex Court in a case Haryana State Electricity Board v. Krishna Devi, 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. The main object of such appointment 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 settled that employment under compassionate ground cannot be made in absence of rules or instructions issued by the Government or any public authority." 11. This Court in case Suraj Singh v. State of J&K, 1999 SLJ 396, held as under: "11. Since the petitioner has no vested right to be appointed on compassionate ground, he cannot ask for a particular post. This Court in case Suraj Singh v. State of J&K, 1999 SLJ 396, 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 respondents were appointed against higher post on compassionate grounds, in the absence of which it is not possible to make a comparison." 12. A Division Bench of this Court has also taken the same view in Tariq Ahmad Ganai v. State of J&K, 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. 13. The Apex Court in Chandigarh Administration v. Jagjit Singh, 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 the State authority to appoint a person on a higher post. 14. This Court in Aashiq Hussain Shah v. State, 2007 (2) JKJ 175 (SWP No.114/2006 decided on 14.5.2007 in Srinagar Wing also laid down the same principle. 15. Applying the test to the instant case, this petition merits to be dismissed. 16. Viewed thus, the writ petition is dismissed along with all CMPs. Interim direction, if any, shall stand vacated.