1. The State of Jammu and Kashmir is in appeal under Clause 12 of the Let ters Patent Rules against judgment dated 07.06.2011 rendered by learned Single Judge of this Court, holding that the case of the writ petitioner-respon dent deserved to be re-considered for compassionate appointment under SRO 43 of 1994. Accordingly, the order dated 16.06.2009, rejecting the claim for compassionate appointment made by the writ petitioner-respondent on the ground of delay has been set aside(Annexure H). 2. Facts are not in dispute. One Wali Ul Rehman Khan was working as a Junior Assistant in the office of Deputy Commissioner Bandipora-respondent no.3. He died in a militancy related activity on 01.02.1992 and was survived by his wife, Khanam Jan, and minor son Ashiq Hussain Khan-respondent no. 1. The widow, Khanam Jan, applied for appointment on compassionate grounds under SRO 43 of 1994 for a class IV post. On due consideration of her case the appellant found that she was involved in a case, FIR no. 300/1989 under Sections 148, 149 and 323 RFC. Accordingly her case was rejected on 18.08.1997. She had also re-mar ried. 3. The writ petitioner-respondent, who was minor at the time of death of his father, applied for compassionate appointment on 04.09.2001 after his mother has relinquished her rights in his favour by executing a relinquishment deed. After considering his case at various levels the appellant-State rejected his claim vide order dated 16.Co.2009 (Annexure-H). The ground of rejection disclosed in the aforesaid order is that the claim was being made belatedly and a period of 17 years has passed. Feeling aggrieved, the writ pe titioner-respondent no. 1 filed SWP no. 1793/2010 relatable to the instant appeal and the learned Single Judge allowed the writ petition by setting aside the order dated 16.06.2009(An-nexure-H) and issued directions for fresh consideration of the case of the writ petitioner-respondent no. 1. 4. We have heard the learned coun sel for the parties at a considerable length and are of the view that the learned Single Judge has committed grave error in law by setting aside or der dated 16.06.2009(annexure-H) and by issuing directions for re-consider ing his case. We say so for the reason that Rule 3 of SRO 43, known as the Jammu and Kashmir (Compassionate Appointment) Rules, 1994 clearly pro vides an exception to the general prin ciples of recruitment to public service.
We say so for the reason that Rule 3 of SRO 43, known as the Jammu and Kashmir (Compassionate Appointment) Rules, 1994 clearly pro vides an exception to the general prin ciples of recruitment to public service. These Rules regulate the procedure for recruitment in any service or posts under the Government on compassion ate grounds as an exception confin ing the same to a Class IV post. Accord ing to the proviso appended to Rule 3(1), the applicant is required to be eligible and qualified. In any case, the Rule stipulates that he should acquire eli gibility and qualification within a pe riod of six months. 5. In the present case, the writ peti tioner-respondent no.1 was minor as his date of birth recorded in the school certificate is 14.10.1981. He was not eligible as he attained the age of 18 years in the year 1999, which is much after the period of six months stipulated by Rules framed under Section 124 of the Constitution of Jammu and Kash mir. Moreover, the application of his mother had already been considered and was rejected on 18.08.1997 be cause she was involved in a criminal case. Later she has also re-married. 6. Compassionate appointments have been permitted as an exception to the general rule requiring that all appoint ments shall be made by a transparent procedure after issuing advertisement inviting applications from all eligible persons and after considering their competing claims. The object of com passionate appointment is to overcome a grave and sudden situation which has resulted into snatching away the bread earner of the family. It has been repeat edly held that compassionate appoint ments are not another source of re cruitment. In that reliance may be placed on the observations made by Hon’ble the Supreme Court in the case of Bhawani Prasad Sonkar v. Union of India and ors., (2011)4 SCC 209 . Their lordships of the Supreme Court, after surveys of whole case law, have pro pounded various propositions which read as under:- "20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority.
Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the gov erning scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassion ate employment must be preferred without undue delay and has to be considered within a reasonable pe riod of time. (iii) An appointment on compas sionate ground is to meet the sud den crisis occurring in the family on account of the death or medical in validation of the bread winner while in service. Therefore, compassion ate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapaci tated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the de pendents of the deceased/incapaci tated employee viz. parents, spouse, son or daughter and not to all rela tives, and such appointments should be only to the loudest category that is Class III and IV posts". 7. However, nearer home, the Su preme Court in case of State of Jammu and Kashmir and ors. vs. Sajad Ahmed Mir, (2006) 5 SCC 766 , has taken the view that delay and laches in making an application for compassionate ap pointment would come in the way of an applicant. In that case a lineman work ing in the Power Development Depart ment had died on 06.03.1987 while in service and his son had applied on 20.09.1991. He was under-aged in September 1991. His case was rejected in 1996 and he approached the Court in the year 1999 by filing the writ peti tion. The Supreme Court took into ac count the period of ISyears which has elapsed when the Division Bench de cided the Letters Patent appeal.
He was under-aged in September 1991. His case was rejected in 1996 and he approached the Court in the year 1999 by filing the writ peti tion. The Supreme Court took into ac count the period of ISyears which has elapsed when the Division Bench de cided the Letters Patent appeal. The delay which had occurred at various levels has been considered by the Su preme Court as a valid ground for de clining the relief by the State as is evi dent from the perusal of para 10, which reads thus:- "10, Having heard the learned coun sel for the parties, in our opinion, the appeal should be allowed. Certain facts are not in dispute. The father of the applicant who was in sendee, died in harness in March 1987 and for the first time, the application was made by the applicant after more than four years i.e. in September 1991. The fam ily thus survived for more than four years after the death of the applicant's father. Even at that time, the applicant, under the relevant guidelines, could not have been ap pointed and hence relaxation was prayed. It is no doubt true that the case of the applicant was favourably considered by the departments and recommendation was made, but it is also a fact which has come on record that in March 1996, a decision was taken by the authorities not to give appointment to the applicant on com passionate ground. From the affidavit-in-reply filed by the authorities in the High Court as also from the find ing of the learned Single Judge, it is clear that the applicant had knowl edge about rejection of his application in 1996 itself. Nothing was done by the applicant against the said deci sion. Considerable period elapsed and only in 1999, when there was some inter-departmental communica tion and the Administrative Officer informed the chief Engineer vide a letter dated 08.6.1999 that the appli cant could not be appointed on com passionate ground that the applicant woke up and filed a writ petition in the High Court. It is also pertinent to note that the letter of 1999 itself re cites that the case of the applicant for compassionate appointment was con sidered and the prayer had already been turned down by the Administra tive Department and the said fact had been communicated to the office of the Chief Engineer.
It is also pertinent to note that the letter of 1999 itself re cites that the case of the applicant for compassionate appointment was con sidered and the prayer had already been turned down by the Administra tive Department and the said fact had been communicated to the office of the Chief Engineer. A copy of the said let ter was also annexed to the letter of 1999. In our opinion, therefore, the learned Single Judge was right in dis missing the petition on the ground of delay and laches by holding that the applicant had not done anything for a considerable period after March 1996 when his claim was rejected even though he was informed about the decision and was very much aware of if. 8. Similar view has been taken by the Supreme Court in Sanjay Kumar vs. State of Bihar and ors. (2000) 7 SCC 192 . In that case the petitioner was ten years old when he lost his mother who was working as Excise Constable. He applied for compassionate appoint ment which was considered in the year 1996 when he attained majority. How ever, his claim for compassionate ap pointment was rejected in 1996 as time barred. Having lost the litigation before the learned Single Judge as well as before the Division Bench, he ap proached the Supreme Court and ar gued that his right to seek compassion ate appointment cannot be defeated on ground of delay caused by the authori ties as it was beyond his control. How ever, the submission was rejected, holding that in a number of cases it has been held by the Supreme Court that compassionate appointment is in tended to enable the family of the de ceased employee to tide over sudden crises resulting due to death of the bread earner who had left the family in penury and without any means of live lihood. The very fact that the family has survived for a longtime would it self be sufficient to deny such appoint ment. 9. In the present case also Wali Ul Rehman Khan died in the year 1992 and his family has survived upto 2010 when the writ petition was filed. More over, there is huge delay in approaching the Court of law. 10. As a sequel to the above discus sion, the appeal is allowed.
9. In the present case also Wali Ul Rehman Khan died in the year 1992 and his family has survived upto 2010 when the writ petition was filed. More over, there is huge delay in approaching the Court of law. 10. As a sequel to the above discus sion, the appeal is allowed. The judg ment of the learned Single Judge is set aside. As a consequence, the order dated 16.06.2009 is restored. 11. No costs.