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2013 DIGILAW 580 (JK)

Faroze Ahmed v. State Of J&K

2013-09-24

ALI MOHAMMAD MAGREY

body2013
1. Petitioner's father was substantively holding the post of Junior Engineer (Civil) in Public Works (R&B) Department. It is pleaded in the writ petition that on 23.04.2008, father of petitioner has expired while in service. It is further pleaded in the writ petition that when father of the petitioner expired; all the three children were school going students. The petitioner passed his 10+2 examination in the year 2006, Graduation in 2007 and Post Graduation in 2009. Respondents considered his claim for being appointed on compassionate ground in accordance with the mandate of Rules notified vide SRO 43 of 1994 [Refer JKS Soft JKS/460]. The consideration resulted in issuance of appointment order in favour of the petitioner and petitioner was appointed against Class-IV post Orderly. This petition is filed with the prayer that at the time of consideration of the claim of the petitioner for compassionate appointment, petitioner had passed three years Degree general course from University of Jammu and has also passed Master Degree Programme in Sociology. Thus, his claim for appointment on compassionate grounds was to be considered against a vacancy in Non-Gazetted service, in view of the mandate contained in the Rule 3 of J&K (Compassionate Appointment) Rules, 1994. 2. On notice issued, respondents have filed objections. 3. Heard learned counsel for the parties. Considered the matter. 4. Learned counsel for the petitioner submits that claim of the petitioner for being appointed on compassionate grounds was considered on the basis of his academic qualification which he possessed in the year 2009. Learned counsel further submits that consideration accorded by the respondents is illegal, inasmuch as, his claim, at the time of consideration accorded by the respondents was to be made on the basis of Rule 3 and 4 of the Rules 1994, inasmuch as, respondents were statutorily required to consider the petitioner's appointment in the Non-Gazetted services. 5. Mr. Ravinder Sharma, learned Additional Advocate General appearing for the respondents on the other hand submitted that compassionate appointment is not provided to a family member, as a matter of right. Learned counsel submitted that a family member is appointed with the sole purpose of providing sustenance to the family. Leaned counsel submitted that it is discretion of the Government to appoint a person on compassionate grounds and is also its direction to appoint him on a class IV post. Learned counsel submitted that a family member is appointed with the sole purpose of providing sustenance to the family. Leaned counsel submitted that it is discretion of the Government to appoint a person on compassionate grounds and is also its direction to appoint him on a class IV post. Learned counsel further submitted that since the petitioner has joined, so is prevented from staking claim for being appointed on higher post. 6. By issuance of appointment order, the claim of the petitioner for his appointment on compassionate ground has been accepted by the respondents. The only issue which requires to be settled is as to on which post petitioner could be appointed. The claim of the petitioner is that he being possessed of Post Graduation Academic qualification, was to be considered by the respondents for being appointed against higher post of non-gazetted service, whereas the claim of respondents that he has been rightly appointed on Class IV post. 7. The appointment on compassionate ground is not usual mode of recruitment on a public post. The post which is available with the Government is a public property and appointments are to be made in accordance with the mandate contained in Article 16 of the Constitution of India. 8. The State, in view of the Scheme contained in our Constitution, is a welfare State. The State, in order to effectuate intendment under lying the Constitution, took a policy decision to provide sustenance to such families which are denuded of the source of sustenance so as to ensure that such families do not suffer from vagaries of life and such families, in order to sustain themselves, do not commit any unethical, immoral or illegal act. The policy decision, so taken by the State Government, is reflected in the rules notified vide SRO 43 of 1994 [Refer JKS Soft JKS/460]. The statutory rules, so formulated by the State, are to be followed by them faithfully. Rule 3 of the Rules of 1994 specifically provide that appointment on compassionate grounds can be offered to a member of a family and such person will be appointed on a class-IV in case he has read up to Matriculation and if his academic qualification is beyond Matriculation, then his claim is to be considered for his appointment on a post in the non-gazetted service. Respondents are duty bound to comply with their own Statutory Rules. Respondents are duty bound to comply with their own Statutory Rules. Respondents cannot approbate and re-approbate as the statutory rules do not permit them to do the same. Petitioner's claim in the facts and circumstances of this case was to be considered for his appointment on a post in the lowest rank of non-gazetted service. Respondents have failed to discharge their statutory obligation by not according such consideration to the claim of the petitioner. 9. The plea of the learned counsel for the respondents that petitioner having accepted appointment cannot stake claim for seeking consideration for being appointed on a higher post, would be against the mandate of Rule 3 of Rules 1994. The family of the petitioner was deprived of source of sustenance and petitioner by accepting the appointment on a class IV post has only enabled the family to sustain itself through lawful means. It cannot be said that petitioner by accepting appointment on class IV, has no right to seek consideration which is provided by the statutory rules for being appointed on a higher post. 10. Learned counsel for the petitioner has referred to and relied upon the judgment of this Court reported in 1999 KLJ 47: JKJ Soft JKJ/11538 titled "Anmolak Singh v. State of J&K & Ors". In paragraph 23 of the judgment, this Court while noticing the similar facts has observed that the job which is to be offered on Compassionate should be commensurate with qualification of the person seeking appointment. 11. Paragraph 23 is extract as under: "......... In view of the above opinion expressed by the Supreme Court of India, Punjab and Haryana High Court and this Court, it can safely be concluded that the job which is to be offered should be commensurate with qualifications of the person seeking appointment. In the present case, Rule 3 is categoric. Person having qualifications above matriculation is to be given post of Junior Assistant and above." 12. For the above stated reasons, this petition is disposed of in the following manner; By issuance of writ of Mandamus, respondents are directed to re-consider the claim of the petitioner for his appointment on compassionate grounds strictly in accordance with mandate contained in the Rules 3 and 4 of the "J&K (Compassionate Appointment) Rules, 1994". For the above stated reasons, this petition is disposed of in the following manner; By issuance of writ of Mandamus, respondents are directed to re-consider the claim of the petitioner for his appointment on compassionate grounds strictly in accordance with mandate contained in the Rules 3 and 4 of the "J&K (Compassionate Appointment) Rules, 1994". Respondents to consider the claim and take a decision thereon within a period of two months from the date copy of this order, is served upon them. 13. Disposed of along with connected CMA(s).