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2013 DIGILAW 322 (JK)

State Of J&K v. Waseem Ahmed Qureshi

2013-05-22

DHIRAJ SINGH THAKUR, MOHAMMAD YAQOOB MIR

body2013
Per Yaqoob, J. 1. Admittedly, father of the petitioner (respondent herein), who was a Chief Prosecuting Officer, died in harness. Petitioner sought compassionate appointment while invoking the provisions of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994 notified vide SRO 43 of 1994 (hereinafter for short referred to as "The Rules"). Being a Law graduate had been recommended to be appointed as Sub Inspector in the Police Department but has been offered the post of Constable. 2. Dissatisfied with the same, has filed the writ petition praying therein that the respondents (appellants herein) may be commanded to appoint him as against the post of Prosecuting Officer or in the alternative as Inspector in the Police Department as he possesses the requisite qualification and eligibility in view of which he was recommended by the Director General of Police vide communication No. Pers/A-103/2005/53330 dated 23.12.2008 and also by the Inspector General of Police. The said writ petition has been disposed of vide judgment dated 17.10.2012 wherein before the learned Single Judge, the writ petitioner had projected that his case is squarely covered by two judgments titled Bimal Indu Sharma v. State and ors, reported in 2009 (1) JKJ [HC] 316 and Imtiyaz Ahmed Malik v. State and ors, reported in 2010 (II) SLJ 658 : 2010 (1) JKJ HC-142. While disposing of the writ petition, the learned Single Judge has observed and directed as under:- "The case, on hand, is similar to the facts of the aforesaid judgments. Respondents are duty bound to consider the claim of the petitioner for being appointed either on the post of Prosecuting Officer or on the post of Sub-inspector, for which, recommendations have been made by the State in his favour. Rule 3 of the Rules of 1994 casts an obligation on the respondents to consider the claim of the petitioner for being appointed on a post other than class IV post. This petition is disposed of and respondents are directed to consider the claim of the petitioner for being appointed either on the post of Prosecuting Officer or Sub-Inspector preferably within a period of eight weeks from the date copy of this order is served upon them." 3. Aggrieved thereof, the State has filed the instant Letters Patent Appeal, wherein it is projected that the right of appointment on compassionate grounds is not absolute. Aggrieved thereof, the State has filed the instant Letters Patent Appeal, wherein it is projected that the right of appointment on compassionate grounds is not absolute. On satisfaction of requisite conditions, the writ petitioner shall be entitled to a post. In terms of Rule 3 (i) of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994, appointment can be offered against a vacancy in the lower rank of non-gazetted service or Class-IV post subject to eligibility. 4. It is further contended that the judgment rendered in Bimal Indu Sharma's case, as referred to in the impugned judgment, has already been set aside by the Division Bench of this Court while disposing of LPASW No. 75/2009 vide judgment dated 07.12.2012. Judgment in Imtiyaz Ahmed Malik's case will not apply to the case of respondent because father of Imtiyaz Ahmed Malik got killed while fighting to militancy. 5. Learned counsel for the respondent, in opposition, contend with all seriousness that there has been different yardsticks for offering compassionate appointment. Respondent being a Law graduate shall be entitled to a post according to his qualification. The appellants have offered compassionate appointments to number of persons as against the higher post in relaxation of age as well as qualification, therefore, writ petitioner-respondent was required to be treated alike. It is in the same background, the writ petition has been allowed. 6. While considering the submissions, it has surfaced that admittedly the father of the petitioner, who was a Chief Prosecuting Officer, has died in harness. Compassionate appointment Rules have been framed with a specific purpose and object so as to help the dependent family members to tide over the uncertain situations they are trapped in. Compassionate appointment is an exception to the general rule of appointment so as to meet the uncertain situations of the family of the deceased falling within the ambit of Rule 2 of "the Rules". 7. Parity can be claimed only when legally some benefit has been extended to a similarly situated so as to avoid discrimination. Parity cannot be claimed when a similarly situated person has been extended the benefit illegally or de hors "the rules". 8. For effectual adjudication of the controversy, it shall be advantageous to refer to various rules governing Compassionate appointment. "The Rules" apply to the compassionate appointment of a person, who is a family member of four categories. Category Nos. Parity cannot be claimed when a similarly situated person has been extended the benefit illegally or de hors "the rules". 8. For effectual adjudication of the controversy, it shall be advantageous to refer to various rules governing Compassionate appointment. "The Rules" apply to the compassionate appointment of a person, who is a family member of four categories. Category Nos. 1 and 2, i.e., Clause (i) and Clause (ii) of Rule 2 which are relevant for the purpose of this case are quoted herein:- (i) a Government employee who dies in harness other than due to militancy related action; (ii) a Government employee who dies as a result of militancy related action or due to enemy action on the line of Actual Control/International Border within the State of Jammu and Kashmir and is not involved in militancy related activities. (iii) ........ (iv) ........" 9. Rule 3 regulates the procedure for recruitment and sub rule (1) provides that an eligible family member of a person specified rule 2 can be appointed against a vacancy in the lower rank of non-gazetted service or Class-IV post having requisite qualification. For such appointment, in case of need, lower or upper age limit or education/technical qualification is relaxable in terms of Rule 7 of the Rules, at the discretion of the Government. 10. Sub-rule (2) of Rule 3 is an exception to Rule (1), same reads as under:- "3 (2) Nothing in sub-rule (1) shall delegate from the powers of the Government in General Administration Department to appoint at its discretion a candidate to a higher post in the non-gazetted service if he/she is a family member of a deceased Government employee or a civilian, killed in the militancy related action." 11. Plain reading would suggest that the Government has power notwithstanding anything contained in sub-rule (1) to appoint at its discretion a candidate to a higher post in the non-gazetted service subject to one condition, i.e., the candidate is a family member of deceased Government employee or a civilian, killed in the militancy related action, which means, in case a Government employee or civilian is killed in the militancy related action then in that eventuality higher post can be offered and for such higher post even relaxation in age, qualification is permissible under Rule 7 of the Rules. 12. 12. According to the learned counsel for the respondent, for offering higher post to a family member of the deceased employee, the requirement of death in a militancy related action is not prescribed. It is required only in case of a civilian when killed in militancy related action. The contention is not in consonance with "The Rules". 13. Looking at the position of Rule 3(1) and then harmonious reading of Rules 2 to 5 of "the Rules", the only persuadable conclusion is that when a Government employ dies in harness, his family member can be offered appointment only against the vacancy in lower rank of non-gazetted service or Class-IV post and not beyond that. In case, a Government employee dies in the militancy related action, then appointment to his family member is governed by Sub-rule (2) of Rule 3, i.,e., he can be offered higher post. In deserving cases under Rule 7 of the Rules, lower or upper age limit or education/Technical qualification is relaxable. 14. In the judgment relied upon, i.e., Imityaz Ahmed Malik v. State of Jammu and Kashmir and ors, reported in 2010 (2) SLJ 658 : 2010 (1) JKJ HC-142, the father of the petitioner therein was a Police Inspector who got killed while fighting with militants, therefore, his case is governed by Sub-rule (2) of Rule 3 of the Rules. His case was recommended for being considered against the post of Sub-inspector in the Jammu and Kashmir Police but was appointed as Junior Assistant in Jammu and Kashmir Civil Secretariat in relaxation of rules. In the writ petition, he had projected that similarly situated persons have been appointed in relaxation of rules, as ASI, he should have been considered alike. 15. Learned Single Judge noticing the position of the similarly situated persons, has issued a direction, for treating the petitioner in the matter of appointment, on compassionate grounds, as against the higher post on the analogy posts have been offered to the similarly situated candidates. 16. The case of said Imitiyaz Ahmed Malik is covered by Sub-rule (2) of Rule 3, therefore, respondent would not be entitled to the same treatment. 17. Another case which has been relied upon, i.e., Bimal Indu Sharma's case, who has been appointed as ASI in the Jammu and Kashmir Police in relaxation of age. 16. The case of said Imitiyaz Ahmed Malik is covered by Sub-rule (2) of Rule 3, therefore, respondent would not be entitled to the same treatment. 17. Another case which has been relied upon, i.e., Bimal Indu Sharma's case, who has been appointed as ASI in the Jammu and Kashmir Police in relaxation of age. After the acceptance of the said appointment, he filed the writ petition projecting therein that higher post of Sub-Inspector and Inspector have been offered to similarly situated persons, same benefit shall be extended to him. The writ petition was allowed with a direction to the respondents that the said petitioner Bimal Indu Sharma shall be treated to have been appointed as Sub-inspector in the Jammu and Kashmir Police from 28.4.1994 along with all consequential benefits. The said judgment was challenged in appeal bearing LPASW No. 75/2009. The judgment was set aside and it was observed that the said petitioner-Bimal Indu Sharma has accepted the post of ASI and after eight years filed the writ petition which was held to be unwarranted. Secondly, it was observed that parity can be claimed when benefit granted to the similarly situated person has been granted in accordance with law and not otherwise. 18. If any similarly situated like that of the respondent herein (petitioner) who is a family member of an employee who died in harness and has not died in militancy related action, has been granted higher post, the same is not permissible in law and if granted the same relief cannot be granted by invoking parity clause as the parity is permissible only when a lawful concession or benefit has been extended to a similarly situated candidate and not otherwise. 19. Respondent, no doubt, is a Law graduate, the post of constable may not befit to his qualification but it is his choice, he may accept it or not. He cannot claim higher post when same is not permissible, in view of the conjoint and harmonious reading of Rules 2 to 5 of the Rules. 20. Judgment impugned, for the aforestated reasons, is not sustainable, as such is set aside, Writ Petition dismissed. Appeal accordingly succeeds.