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2010 DIGILAW 631 (JK)

Irshad Ahamad Malik v. State

2010-12-16

Hasnain Massodi

body2010
1. Short controversy involved in the present writ petition relates to entitlement of the petitioner to appointment in Government service on compassionate grounds under Jammu and Kashmir (Compassionate Appointment) Rules 1994, notified vide SRO--43 of 1994. The facts relevant to disposal of the writ petition may be summarised as under:- 2. Shri Farooq Ahamad Malik Son of Abdul Qayoom Malik Resident of Udhrana, Tehsil Bhaderwah, District Doda, working as Food Inspector in the Medical Department Gandoh Block died in harness on 23rd May 2000, due to cardiac arrest. The deceased left behind his widow--Tahira Nazneen, parents, two minor children Adil Farooq and Azmat Farooq and siblings including petitioner herein. The petitioner soon after demise of his brother submitted an application dated 20.6.2000 to the Controller, Food and Drugs Control Organisation, J&K Government through Block Medical Officer Health and Family Welfare Gundoh, for his appointment on compassionate grounds under SRO--43 of 1994. The application was duly forwarded by Block Medical Officer Health and Family Welfare Gandoh vide No. 263 dated 20.6.2000 to the Controller, Food and Drugs, Food Control Organisation. Thereafter the petitioner on 27.6.2000 obtained a certificate from Sub Divisional Magistrate, Baderwah, wherein the petitioner was declared as one of the family members left behind by the deceased employee and monthly income of the family was assessed as Rs. 13,906/-. The certificate was duly submitted in support of application. The certificate No. 295--98/2k dated 27th June 2000 was modified vide No. 12--15/R/2 KI dated 12th April 2001, whereby only widow, two children and the petitioner were declared as the dependent family members of the deceased and the income of the family assessed as Rs. 600/- per month. After the efforts made by the petitioner to get Government employment on compassionate grounds did not bear any fruit, petitioner and Tahira Nazneen on 28.6.2001 submitted a joint application to the Chief Secretary Jammu and Kashmir Government for appointment on compassionate grounds complaining therein that "their case was not being processed" and that they had no source to fall back upon. When joint application dated 23.6.2001 did not make any impact, the petitioner filed a writ petition registered as SWP No. 1761 of 2001 pleading denial of his Constitutional and Statutory rights, and praying for appropriate directions to the respondents. When joint application dated 23.6.2001 did not make any impact, the petitioner filed a writ petition registered as SWP No. 1761 of 2001 pleading denial of his Constitutional and Statutory rights, and praying for appropriate directions to the respondents. The writ petition was disposed of on 06.08.2001 as under:- "petition is disposed of with a direction to the respondents to consider the claims of the petitioner in terms of SRO--43 of 1994 and pass appropriate orders within six weeks". 3. The respondents accordingly considered the petitioner's claim and rejected the petitioners case for appointment on compassionate grounds on the grounds that the petitioner was ineligible to enter into Government Service because of his having crossed the upper age limit at the time of death of his brother and that the petitioner was not dependant on his deceased brother as his father (father of the deceased) was still alive and further that the Government did not consider the case to be fit for relaxation in upper age limit in favour of the petitioner. The petitioner not satisfied with the aforesaid Government order filed yet another writ petition registered as SWP No. 3205/2001 reiterating the stand taken in earlier writ petition--SWP No. 1761 of 2001. The second writ petition was disposed of on 31.12.2001 with the following directions:- "This petition is accordingly, disposed of with a direction to the respondent authorities to consider the claims of the petitioner in light of the observations made by this Court in writ petition No. 2147 of 1998. Let this be done within a period of three months from the date a copy of this order along with copy of OWP No. 2147/1998 is made available by the petitioner to the respondent authorities". 4. The respondents in compliance of the Court direction dated 31.12.2001 considered the matter and vide Government Order No. 345-GAD of 2003 dated 11.03.2003 again rejected the petitioner's claim to Government employment on compassionate grounds. 5. 4. The respondents in compliance of the Court direction dated 31.12.2001 considered the matter and vide Government Order No. 345-GAD of 2003 dated 11.03.2003 again rejected the petitioner's claim to Government employment on compassionate grounds. 5. The petitioner has now come up with the instant petition throwing challenge to the Government order No. 345-GAD of 2003 dated 11.03.2003 as also earlier order No. 1606-GAD of 2001 dated 29.11.2001 on the grounds, that both the Government Orders are arbitrary and not in conformity with law laid down on the subject; that the impugned orders have been made oblivious to hardship the petitioner is exposed to and unmindful of the law laid down in Jia Lal v. Union of India, OWP no. 2147 of 1998 on 30-04-2001. It is submitted that SRO--43 was amended and Rule 7 incorporated to enable the respondents to relax statutory requirements in deserving cases and that having regard to the financial crisis the petitioners family was pushed to, due to untimely demise of Farooq Ahamad Malik, the respondents ought to have exercised discretion in favour of the petitioner. The petitioner in supplementary affidavit filed in wake of order dated 01.09.2007 has claimed to have married Tahira Nazneen--widow of deceased brother, to have adopted his minor children and taken upon himself responsibility to maintain widow and minor children of his deceased brother. 6. The respondents for the reasons better known to them have neither filed their reply at pre-admission stage nor filed any Counter Affidavit after the writ petition was formally admitted to hearing on 16.04.2004. 7. Heard and considered. 8. Article 16, Constitution of India confers on every citizen a right to equality of opportunity in the matters relating to employment or appointment to any office under the State. It follows that public employment can not be given selectively at the whim and caprice of the appointing Authority and once appointment is to be made to any office under the State such appointment is to be thrown upon to the public at large, so as to provide equal of opportunity to all the eligible candidates to compete for such appointment and fulfil mandate of aforesaid provision. The Jammu and Kashmir (Compassionate-Appointment) Rules 1994 notified vide SRO 43 dated 22nd February 1994 carve out an exception to the aforementioned principle, in favour of spouse, children and siblings of Government servant who dies in harness and on whom said family members are dependant. In terms of Rule 3 an eligible family member of a Government employee who dies in harness may be appointed against a vacancy in the lowest rank of Non-Gazetted service or Class IV post having qualification as prescribed under relevant Recruitment Rules. The appointment can be made notwithstanding any thing contained in any Rule or Order for the time being in force regulating the procedure for recruitment in any service or post under the Government. In the present case the averment made that deceased Farooq Ahamad Malik Son of Abdul Qayoom Malik Resident of Udhrana, Tehsil Baderwah, District Doda, working as Food Inspector, in the Medical Education Department and posted in Gondoh Block died in harness on 23rd May 2000 is not controverted by the respondents. It is also not denied that the petitioner is brother of deceased and that the petitioner some time after tragic death of his brother married with Tahira Nazneen Malik widow of deceased Farooq Ahmad Malik and has decided to shoulder responsibility to maintain his minor children. All other averments made in the petition have also gone uncontroverted. The respondents, however, have rejected the petitioners application for appointment on compassionate grounds under SRO--43 vide order dated 1606-GAD of 2001 dated 29th November 2001, on the grounds that the petitioner was ineligible to enter into Government service because of his having crossed the maximum age limit at the time of death of his brother and that the petitioner was not dependant on his deceased brother. The first ground pressed into service to reject the petitioner's application is factually incorrect and appears to have been relied upon without there being any material before the Competent Authority to support such stand. Sh. Farooq Ahmad Dar the deceased Food Inspector, as per Certificate No. 427/SIH/BHAD dated 31.05.2000, breathed his last on 23rd May 2000. The petitioner's date of birth as per the matriculation certificate is 2nd June 1965. The petitioner thus was less than 35 years of age on the date of death of deceased Farooq Ahmad Malik. Sh. Farooq Ahmad Dar the deceased Food Inspector, as per Certificate No. 427/SIH/BHAD dated 31.05.2000, breathed his last on 23rd May 2000. The petitioner's date of birth as per the matriculation certificate is 2nd June 1965. The petitioner thus was less than 35 years of age on the date of death of deceased Farooq Ahmad Malik. The age for recruitment in Government service as per Article 37 Jammu and Kashmir Civil Services Regulations 1956 is 35 years for general category and 38 years for members of Schedule Caste and Schedule Tribe candidates. The petitioner, in the circumstances was eligible for recruitment in Government service on the date of death of deceased Farooq Ahmad Malik and the application for appointment on compassionate grounds under SRO--43 of 1994 could not have been turned down by the respondents on the ground of his having crossed upper age limit for recruitment in the Government service on the date of death of his brother. The second ground for rejection of the petitioner's claim i.e. one regarding petitioner not having been dependant on his deceased brother is equally fallacious and devoid of any basis. The respondents have jumped to the conclusion that the petitioner was not dependant on his deceased brother on the mere fact, that petitioner's father was still alive without making any inquiry as regards source of income of petitioner's father, and whether the petitioner's father himself was dependant on deceased Farooq Ahamad Malik. Further more, the respondents while rejecting the petitioner's claim for appointment on compassionate grounds under SRO--43 of 1994, vide Government order 1606-GAD of 2001 dated 29th November 2001 have failed to take notice of Certificate issued by Sub Divisional Magistrate, Bhaderwah, vide No. 12-15/R/2ki whereby on verification, the petitioner, Tahira Nazneen--widow of deceased and her two children were declared as only family members of the deceased employee. 9. So viewed, both the orders i.e. No. 345 of GAD of 2003 dated 11.03.2003 and 1606-GAD of 2001 dated 29.11.2001 have been passed in a whimsical and arbitrary manner, depicting total non application of mind by the Competent Authority. The impugned orders thus cannot stand legal scrutiny. The respondents have also failed to notice that both Tahira Nazneen and Irshad Ahmad Malik, vide application dated 28.06.2001, approached the respondent No. 1 for appointment on compassionate grounds under SRO--43 of 1994. The impugned orders thus cannot stand legal scrutiny. The respondents have also failed to notice that both Tahira Nazneen and Irshad Ahmad Malik, vide application dated 28.06.2001, approached the respondent No. 1 for appointment on compassionate grounds under SRO--43 of 1994. The respondents only dealt with the claim put forth by the petitioner and did not accord any consideration to the case set up by Tahira Nazneen Malik widow of deceased employee who having status of family member of the deceased employee within the meaning of Rule 2 J&K (Compassionate Appointment) Rules, 1994 was clothed with the right to be considered for appointment on compassionate grounds under said Rules. There can be no disagreement that a dependent of a deceased employee is not vested with the right to be appointed/recruited in any service or post under the Government, and all that a family member of deceased employee is entitled to is consideration for such appointment. This however, does not imply that a claim put forth for appointment on compassionate grounds should be dealt with in a lifeless, indifferent, apathetic manner. The authority conferred powers to make appointment on compassionate grounds under SRO--43 is expected to be alive to the object behind the Rules and conscious of plight of dependants of an employee, who dies in harness, left high and dry without any source to fall back upon. As the appointment is to be made on compassionate grounds, the Authority vested with the power to make such appointment is to show compassion while dealing with a claim set up by family member of a deceased employee to appointment on compassionate grounds, with proper dispatch. It is painful that the petitioner in the present case has been pushed to three rounds of litigation only because the respondents failed to make proper inquiry and rushed to a conclusion without there being any material to support such conclusion. 10. For the reasons discussed above the petition is allowed and Government Order Nos. 345 of GAD of 2003 dated 11.03.2003 and 1606-GAD of 2001 dated 29.11.2001 are quashed. The respondents are directed to consider the petitioner's claim for appointment on compassionate grounds under SRO--43 of 1994 Jammu and Kashmir (Compassionate Appointment) Rules 1994, afresh, in light of above observations and in any case pass appropriate orders within 8 weeks from the date copy of this order is served on the respondents. 11. Disposed of accordingly.