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2012 DIGILAW 544 (JK)

Masarat Gull v. State & Ors.

2012-08-31

MANSOOR AHMAD MIR

body2012
1. Petitioner has sought a writ of mandamus commanding the respondents to consider her case for compassionate appointment in terms of the Jammu & Kashmir Compassionate Appointment Rules, 1994 (SRO 43 of 1994) and appoint her against any available vacancy. 2. The respondents have filed their reply and resisted the writ petition on the ground that precisely the case of the petitioner is that she was entitled to benefit of SRO 43 of 1994, but the Government has chosen to pay her cash compensation in terms of SRO 199 dated 04.07.2008 and, accordingly, rejected her claim by directing payment of cash compensation in terms of communication dated 10.02.2010 made by the Deputy Secretary to Government, General Administration Department, to the Deputy Commissioner, Anantnag. Learned counsel for the petitioner argued that it is for the petitioner, who seeks compassionate appointment in terms of SRO 43 of 1994 read with SRO 199 dated 04.07.2008, to opt either for Government service or for cash compensation. Admittedly, the case of the petitioner is that she has not opted for cash compensation, but has made claim for Government service. It will be appropriate to reproduce the last paragraph of the SRO 199 dated 04.07.2008, which reads as under: "Provided that if any one among the family members of the deceased civilian fulfills the eligibility criteria prescribed under the aforesaid Rules for appointment into the Government service or acquires such eligibility within one year from the date of death of the deceased person, then they shall have the option either to choose the Government service or the cash compensation." 3. While going through the aforementioned reproduction, one comes to the irresistible conclusion that it is for the beneficiary to exercise the option and not for the Government to thrust an option. The petitioner has not accepted the cash compensation, but has invoked the writ jurisdiction of this Court in terms of earlier writ petition, bearing No. SWP 321/2007, for her compassionate appointment. This Court, while disposing of the writ petition, had directed the respondents to consider the claim of the petitioner on the touchstone of SRO 43 of 1994 and pass appropriate orders. It is seen from the record that the respondents have not raised any objections for considering her case in terms of SRO 43 of 1994. This Court, while disposing of the writ petition, had directed the respondents to consider the claim of the petitioner on the touchstone of SRO 43 of 1994 and pass appropriate orders. It is seen from the record that the respondents have not raised any objections for considering her case in terms of SRO 43 of 1994. It is not understandable as to how the respondents have issued the communication No. GAD/Mtg/III/44/2009 dated 10.02.2010, in so far as it relates to the petitioner herein, which in my opinion is in total breach of the judgement passed by this Court in SWP No. 321/2007. I would have dealt with the respondents on this issue, but I refrain from doing so at this stage. 4. Learned counsel for the petitioner has placed on record copy of order passed by the Government which has the effect of issuing appointment orders in terms of SRO 43 of 1994 even in relaxation of age bars in favour of some of the persons, that too, after coming into being the SRO 199 dated 04.07.2008. It is not understandable, what measuring yard stick was adopted by the respondents in the case of the beneficiaries of the aforementioned Government order which did not fit the bill in the case of the petitioner. 5. In the aforementioned backdrop, and the observations made hereinabove, respondents are directed to consider the case of the petitioner for compassionate appointment strictly in terms of the judgement passed by this Court read with mandate of SRO 43 of 1994 as expeditiously as possible, preferably within two months, which date shall begin from the date a copy of this order is served on and made available to the respondent-competent authority. 6. Disposed of along with all connected CMPs.