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2013 DIGILAW 432 (JK)

Naseer Ahmad Dar v. State

2013-07-26

Hasnain Massodi

body2013
1. Petitioner's father died in harness sometime before year 2000. Soon after he lost his father, the petitioner approached the respondents with an application for his appointment on compassionate grounds in terms of Jammu & Kashmir (Compassionate Appointment) Rules, 1994 notified vide SRO 43 of 1994 [Refer JKS Soft JKS/460]. His claim was accepted and the Deputy Commissioner, Anantnag vide Order No. 121-CA/Misc/2000 dated 21.08.2000 appointed petitioner as Farm Supervisor in the pay scale of 3050-4910 in the Agriculture Department against the vacancy that had become available due to promotion of one Nazir Ahmad Sofi- Farm Supervisor. 2. Petitioner joined as Farm Supervisor in the office of Chief Agriculture Officer, Anantnag. However, Chief Agriculture Officer, Anantnag did not allow the petitioner to discharge the duties of Farm Supervisor nor did he assign any work to the petitioner. Aggrieved, the petitioner filed Writ Petition on hand seeking following relief: - "i) MANDAMUS, commanding the respondents to allow the petitioner to work and perform his duties as F. Supervisor to which he was appointed vide order dated 21.08.2000 and to pay him the salary w.e.f. 22.08.2000 without causing any impediment. ii) MANDAMUS, the respondents be directed to prepare the service book of the petitioner and all other documents required in this regard. iii) Any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case be also passed in favour of the petitioner and against the respondents." 3. The respondents, in their Counter-affidavit, admit all the factual averments made in the Writ Petition. They, however, plead that the post of Farm Supervisor was a promotional post and the petitioner did not deserve to be appointed against the said post. The case set up by the respondents, in opposition of the Writ Petition, was that the petitioner deserved to be appointed against Class-IV vacancy and that the Deputy Commissioner, Anantnag had erroneously and unmindful of mandate of Jammu & Kashmir (Compassionate Appointment) Rules, 1994, appointed the petitioner against a higher post. It is pleaded that the petitioner vide order dated 23.10.2000 was allowed to join against post carrying pay scale of Rs. 2550-3200 subject to the final outcome of the Writ Petition. 4. It is pleaded that the petitioner vide order dated 23.10.2000 was allowed to join against post carrying pay scale of Rs. 2550-3200 subject to the final outcome of the Writ Petition. 4. This Court, on 29.09.2000, in CMP No. 2236/2000 passed an order directing the respondents to permit the petitioner to join against the post in terms of order dated 21.08.2000 passed by Deputy Commissioner, Anantnag. The Court, in effect, directed the respondents to allow the petitioner to join as Farm Supervisor carrying pay scale of Rs. 3050-4910. 5. The Writ Petition was disposed of on 30.03.2011 with a direction to the petitioner to join in terms of Government Order No. 589-GAD of 2008 dated 25.04.2008 against available Class-IV post in the grade of Rs. 2550-3200. It was further provided that the petitioner would be deemed to have joined as such w.e.f. the date of order i.e. 13.09.2000. The Writ Court proceeded on the assumption that the petitioner grievance was set right vide Government Order No. 589-GAD of 2008 dated 25.04.2008. The petitioner laid a Review Petition being Review No. 09/2011 pleading therein that as Government Order No. 589-GAD of 2008 dated 25.04.2008 pertained to one Javed Ahmad Ganai and not the petitioner, there was an error apparent on the face of record and order dated 30.03.2011 called for review. The Review Petition was allowed on 17.07.2012. The order dated 30.03.2011 whereby Writ Petition was disposed of was recalled and set aside and the Writ Petition directed to be listed for consideration. So much about history of the proceedings. 6. The petitioner though given an opportunity, has opted not to file rejoinder. 7. Heard and considered. 8. There is no dispute between the parties as regards appointment of petitioner as Farm Supervisor in the grade of Rs. 3050-4910 on compassionate grounds in terms of Jammu & Kashmir (Compassionate Appointment) Rules, 1994. The petitioner in compliance of interim direction dated 29.09.2000 is expected to have been allowed to join as Farm Supervisor and to be working as such till date. Though the respondents, in their Counter affidavit, insist that the Deputy Commissioner, Anantnag, ought not to have appointed the petitioner as Farm Supervisor as the post was higher than the Class-IV post, for which, petitioner was eligible, yet till date the appointment Order No. 121-CA/Misc/2000 dated 21.08.2000 has not been reviewed or recalled. Though the respondents, in their Counter affidavit, insist that the Deputy Commissioner, Anantnag, ought not to have appointed the petitioner as Farm Supervisor as the post was higher than the Class-IV post, for which, petitioner was eligible, yet till date the appointment Order No. 121-CA/Misc/2000 dated 21.08.2000 has not been reviewed or recalled. Such an order bearing No. 589-GAD of 2008 dated 25.04.2008 has been made in case of one Javed Ahmad Ganai appointed as Store Keeper on compassionate grounds in the Agriculture Department. It only makes a reference to petitioner's case as also that of one Mst. Shahina Shaban appointed as Junior Assistant on compassionate grounds in the respondents-Department without revoking the appointment orders. The petitioner having worked as Farm Supervisor for last more than a decade cannot be deprived of the status conferred on him vide Order No. 121-CA/Misc/2000 dated 21.08.2000, twelve years after the order was made. Such a course would be grossly unjust and unfair. 9. The petitioner, in para 6 of his writ petition, has made a specific reference to appointment of one Khurshid Hussain Shah S/o Ghulam Hassan Shah R/o Bijbehara appointed on compassionate grounds as Computer Operator in the respondents-Department. It is pleaded that said Khurshid Hussain appointed vide Order No. 73-CA/MISC/2000 dated 27.05.2000 on compassionate grounds in terms of SRO 43 of 1994 [Refer JKS Soft JKS/460] has been allowed to work on a post higher than a Class-IV post and the petitioner is being singled out for discriminatory treatment. The respondents, in their reply, have not controverted the averment made in the petition in this behalf. Respondents have not placed on record any order to indicate that the appointment order made in favour of Khurshid Hussain Shah was recalled on the ground that he was eligible for appointment against Class-IV post and not against the post of Computer Operator in pay scale of Rs. 3050-4590/-. 10. In the said background, there is merit in the petitioner's stand that while Khurshid Hussain Shah has been allowed to join against the post higher than the Class-IV post, petitioner is being unjustifiably denied such a right. The respondents by subjecting petitioner to treatment different from one given to a similarly placed candidate i.e. Khurshid Hussain Shah have infringed petitioner's right to equality guaranteed under Article 14 of Constitution of India. 11. The respondents by subjecting petitioner to treatment different from one given to a similarly placed candidate i.e. Khurshid Hussain Shah have infringed petitioner's right to equality guaranteed under Article 14 of Constitution of India. 11. The above discussion apart, Jammu & Kashmir (Compassionate Appointment) Rules, 1994 do not stand in the way of the petitioner and justify objection to petitioner's appointment as Farm Supervisor in the grade of Rs. 3050-4910/-. In terms of Rule 3 of the Rules, an eligible family member of a person specified in Rule 2, may be appointed against a vacancy in the lower rank of non gazetted service or Class-IV post having qualification as prescribed under the relevant Recruitment Rules. 12. Petitioner has passed his 10+2 examination in the year 1995 and had academic qualification higher to the qualification necessary for appointment against Class-IV post at the relevant time. Rule 3 does not put a blanket ban on compassionate appointment to a post other than Class-IV post. In terms of Rule 3, a person subject to his eligibility may be appointed against a vacancy in the lower rank of the non gazetted service. Farm Supervisor is a post in the lower rank of Non Gazetted Agriculture Service. The Deputy Commissioner, Anantnag, therefore, cannot be held to have exceeded his jurisdiction or disregarded the mandate of Rule 3 of the Rules while appointing the petitioner against the post of Farm Supervisor in the grade of Rs. 3050-4910/-. 13. So viewed, the factum of petitioner's appointment being beyond dispute and the controversy being restricted only to the post or position against which he deserved to be appointed, petitioner had a right to be appointed against the post of Farm Supervisor and, therefore, was to be allowed to join as such pursuant to Order No. 121-CA/Misc/2000 dated 21.08.2000. 14. Looking from any angle, challenge to petitioner's appointment as Farm Supervisor in the grade of Rs. 3050-4910/- is devoid of any merit. Resultantly, the Writ Petition succeeds and is, accordingly allowed. The respondents are commanded to allow the petitioner to perform the duties of Farm Supervisor and treat him to have joined against the post of Farm Supervisor w.e.f. the date he reported to the Office of Chief Agriculture Officer, Anantnag pursuant to Order No. 121-CA/Misc/2000 dated 21.08.2000.