1. While considering the compassionate appointment case, humanitarian ap proach has to be the hallmark and a primary consideration. Compassionate ap pointment case has to be considered in a most humanistic approach, to make the genuine aspirants to wait and force them to have resort to litigative process defeats the very object of compassion which in turn subjects the dependent family members to further mental agony and state of helplessness. When it is a positive case that an employee has died in harness leaving behind five unmarried daughters, a widow and a son, can such case be lingered indefinitely, answer has to be "no" because if consideration and finalization of such cases is prolonged, the dependent family members become the victim and the very object of the compassion gets frustrated. 2. Petitioner has sought compassionate appointment under the provisions of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994 notified vide SRO 43 of 1994. Respondent No. 2 (Director Horticulture) seems to have proposed compassionate appointment in favour of the petitioner vide letter No. Adm/NG/7642-43 dated 27.8.2007. Same has been responded vide communication impugned dated 03.06.2008, where-under Under Secretary to Govt. Agriculture Production Department has communicated to the respondent No. 2 that the General Administration Department has observed as under:- "Returned. The departmental proposal has not been agreed to being not covered under relaxation policy. The department is, however, advised to process the case of Miss Fehmeeda, the daughter of the deceased whose age has been shown as 19 years as per the dependent certificate issued by the Assistant Commissioner (Revenue) Budgam. If she is unmarried she can be considered for appointment under SRO 43/1994." 3. The factual matrix of the case is that the deceased Ghulam Qadir, father of the petitioner, was the employee of Horticulture Department, posted as Gardener who died in harness on 15.5.2000. He is survived by wife, five daughters and one son i.e. petitioner. At the time of death of said Ghulam Qadir, age of the petitioner was 12 years plus. All the legal heirs aforesaid including petitioner were the dependents who resolved that the petitioner (son) should be considered for com passionate appointment. 4. The compassionate appointment case appears to have remained pending in the department and finally the respondent No. 2 vide his letter dated 27.8.2002 had proposed and recommended case of the petitioner for appointment in relaxation of age.
4. The compassionate appointment case appears to have remained pending in the department and finally the respondent No. 2 vide his letter dated 27.8.2002 had proposed and recommended case of the petitioner for appointment in relaxation of age. The respondent-General Administration Department has not agreed but in stead has observed that Miss Fehmeeda, daughter of the deceased, who was major, if not married, can be considered for appointment. 5. In the reply filed by respondents No. 1 to 3 it has been stated that for compassionate appointment under SRO 43 the dependent member must possess requisite qualification or must acquire such eligibility and qualification within a period of six months from the date of death of the deceased. The deceased has died on 15.5.2000, age of the petitioner at that time was 12 years and 3 months. The impugned communication is dated 3rd June, 2008, petitioner filed representation on 5.6.2008, he has not explained as to why he did not challenge the said commu nication before any court with promptitude. It is also alleged that as per J&K Horticulture (Subordinate) Service Recruitment Rules, 1998 notified vide SRO 340 dated 10.12.1998 read with SRO 235 dated 26.6.2002, the post of Gardner is to be filled up by the direct recruitment from amongst the persons who are Matriculate. Petitioner neither possesses the requisite qualification nor was major so could not be considered. 6. Learned counsel for the petitioner would contend that the age of the petitioner, no doubt, at the time of death of his father was 12 years and 3 months. As per Rule 3 of the Compassionate Appointment Rules, 1994 the requirement for appointment on compassionate grounds include that the dependent member must be eligible i.e. he must possess requisite qualification and must be 18 years old but Rule 7 provides for relaxation and it is in the same background case for appointment in relaxation of age had been submitted to the respondent-General Administration Department. Learned counsel further added that vide communication impugned it has been advised that Miss Fehmeeda, one of the dependent members i.e. daughter of the deceased, if not married, can be considered for compassionate appointment but said Fehmeeda Akhter has sworn an affidavit that she is going to be married soon, she has no objection in case petitioner is appointed under SRO 43.
The widow, mother of the petitioner, has also represented that she has no source of income, there is no grownup family member who could feed the family, it is the petitioner, who is unemployed, if provided compassionate appointment on humanitarian grounds, shall be able to take care of the family of the deceased. 7. In opposition, learned counsel for the respondents would contend that the petitioner was required to acquire requisite eligibility in terms of Rule 3 within a period of six months from the date of death of his father when he, admittedly, was 12 years and 3 months old, so could not acquire requisite eligibility within the stipulated period, as such, there is no scope for his appointment. 8. Learned counsel for the petitioner, in opposition submitted that he has been able to collect Govt. Order No.1009-GAD of 2011 dated 30-8.2011 which provides that in compliance to the direction of the High Court dated 05.04.2010 passed in LPA(SW) No. 105/2009 tilted Neeraj Sharma v. State and Ors, sanction has been accorded to the appointment of said Neeraj Sharma in relaxation of proviso to sub-rule(1) of Rule 3 of SRO 43 of 1994. 9. The case of said Neeraj Sharma was identical to that of the petitioner. At the time of death of father of Neeraj Sharma i.e. 02.11.1997, his age was just 10 years, 9 months and 23 days and in relaxation appointment was offered to him. Submission of learned counsel for the respondents that the case of Neeraj Sharma was special in nature having different circumstances, pales into insignificance on comparison of the family and fact position of the two families. The position of the family of the deceased Ghulam Qadir, which consists of five unmarried daughters, widow and a son, can be termed to be more special, therefore, case of the petitioner for compassionate appointment in relaxation deserves sympathetic consideration in the manner case of Neeraj Sharma has been considered and appointment has been offered to him. 10. The respondents, in principle, have agreed that one of the dependent family member of the deceased deserves compassionate appointment and it is only in that context in the communication impugned it has been mentioned that Miss Fehmeeda, daughter of the deceased, who was major, can be offered appointment.
10. The respondents, in principle, have agreed that one of the dependent family member of the deceased deserves compassionate appointment and it is only in that context in the communication impugned it has been mentioned that Miss Fehmeeda, daughter of the deceased, who was major, can be offered appointment. The position of the dependents and the real compassion required to be shown towards the family of the deceased, in principle, is not denied. 11. The object of providing compassionate appointment to the family of the deceased is to save the family from destitution which is purely on humanitarian considerations. Such type of appointment is an exception to the general rule of appointment. 12. The contention that the petitioner has not challenged the impugned com munication dated 03.06.2008 till the date of filing of writ petition in the year 2011, is without any substance in view of the specific averment No. 6 of the preliminary objections as filed by the respondents, wherein it is categorically stated that the impugned communication has been issued on 03.06.2008 and the representation has been filed by the petitioner on 05.06.2008. When till 2011 representation of the petitioner was not considered, family was suffering, the petitioner had no other mode available but to seek redressal of his grievances by filing instant petition, therefore, there is no delay attributable to the petitioner. 13. For the stated reasons, this writ petition is disposed of with a direction to the respondent No. 2-Director, Horticulture, Srinagar, that he shall re-submit compassionate appointment case of the petitioner to the respondent-General Ad ministration Department and the respondent-General Administration Department shall process and finalize compassionate appointment case of the petitioner on the analogy case of Neeraj Sharma has been processed and finalized in terms of Govt. Order No.1009-GAD of 2011 dated 30.8.2011, within a period of eight weeks from the date copy of the order is served upon respondents. 14. Writ petition succeeds as above, as such, shall stand disposed of along with connected CMP. 15. Copies of the documents obtained by the petitioner relatable to the case of Neeraj Sharma under Right to Information Act and produced for perusal be taken on records along with Govt. Order No. 1009-GAD of 2011 dated 30.08.2011.