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2012 DIGILAW 76 (JK)

Bashir Ahmad Dar v. State & Ors.

2012-02-27

MANSOOR AHMAD MIR

body2012
1. The subject matter of the writ petition is Government Order No. 901 (Aux) of 2009 dated 10th of November, 2009 and the challenge is thrown to it, on the grounds taken in the memo of writ petition. 2. With this writ petition, the petitioner has landed in second round of litigation and the orders which have been issued by the respondents from time to time have given him reason for such litigation. 3. It appears that father of the petitioner died in harness and accordingly case of the petitioner for compassionate appointment was processed and was subsequently appointed on 3rd of April 1998. But he was not allowed to join his duties by the concerned authority constraining him to approach this court through the medium of a writ petition SWP No. 312/2000, which was allowed vide judgment dated 15th of February, 2008 and respondents were directed to consider the case of the petitioner and make a decision. 4. The reason for not allowing the petitioner to join his duties appears to be the factum of petitioner having become over-aged; the relief, besides, is declined on the ground, that his case does not fall within the ambit of SRO 43. 5. This court has already held vide judgment supra that the father of the petitioner died in harness, therefore, the question of petitioner's father being in service, stands already settled and respondents in that view of the matter cannot pass an order which may go contrary to the finding of the judgment. Having said so, the respondents virtually are in breach. The respondents were only required to consider whether the petitioner was entitled to relaxation as per the rules and the law applicable but they have rejected his case without dealing with the said issue. This court in case titled Manju Sharma v. State of J&K & Ors reported as 2010 (3) JKJ HC-643 and Learned Division Bench of this court in case LPASW No. 105/2009 Decided on 5.4.2010, has held that respondents have powers to relax the age from both sides below or upper level. 6. It is also worthwhile to mention herein that the petitioner was before this court for eight years and after eight years writ petition was allowed. 6. It is also worthwhile to mention herein that the petitioner was before this court for eight years and after eight years writ petition was allowed. Thereafter respondents took more than one and half year to decide the issue, thus petitioner is in lis for last more than 10 years which goes against the concept of granting compassionate appointment. 7. In the given circumstances, I deem it proper to allow the writ petition and set aside the Government Order No. 901 (Aux) of 2009 dated 10th of November, 2009 and a direction is also issued to the respondents to reconsider the case of the petitioner for grant of compassionate appointment while considering his case for relaxation of age and having regard to the ratio laid down in the judgments supra. 8. Disposed of along with all CMPs.