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2013 DIGILAW 622 (JK)

Akib Yousuf Khan v. State of J&K

2013-10-23

ALI MOHAMMAD MAGREY

body2013
JUDGMENT : Ali Mohd. Magrey, J. 1. In the instant petition, petitioner has prayed the following relief: "(i) Writ, order or direction in the nature of certiorari for quashing the communication issued by Undersecretary to Govt., School Education Department under No. EDU-I/198/2007, dated 11.10.2011; (ii) Writ, order or direction in the nature of mandamus commanding the respondents to make appointment of the petitioner in the Education Department as Teacher in terms of SRO 43 of 1994." Brief facts: Father of the petitioner late Mohd. Yousuf Khan was holding the post of Master on substantive basis in the Education Department and was in of service at the time of his death. Petitioner submits that he was minor at the time of death of his father. It is submitted that the petitioner in order to sustain the family and to seek employment made an application dated 09.08.2006 to respondent No. 6 bringing it to his notice the death of his father in harness and being minor requested that appointment in terms of SRO 43 of 1994 may be kept reserved till the petitioner attains majority. 2. Respondents have registered the request of the petitioner and asked him to submit relevant/required documents so as to process his case for compassionate appointment. Petitioner having submitted the requisite documents and by the time the case is under consideration he has attained the eligibility but respondent No. 3 in terms of communication No. Edu-I/198/2007, dated 11.10.2011 has rejected his case on the ground that his case is not covered within the ambit of SRO 43 of 1994, as one of his family member is a Government employee besides on the ground that the petitioner's case has been submitted to Government after gap of four years. 3. Petitioner challenges the decision of the government rejecting his claim on the grounds detailed out as under: i. "that the respondents have rejected the claim of the petitioner under misconception of fact and law as the case of the petitioner remained pending with the respondents since 2006 when he made his first application on 09.08.2006. The basis for rejection of his claim are factually incorrect and legally unsustainable as the petitioner has not remained negligent in approaching the respondents within time for consideration of his case seeking appointment on compassionate grounds; ii. The basis for rejection of his claim are factually incorrect and legally unsustainable as the petitioner has not remained negligent in approaching the respondents within time for consideration of his case seeking appointment on compassionate grounds; ii. that the case remained pending with the respondents for consideration right from 2006 as is evident from the inter se communications of the respondents which are on record; iii. that the rejection on the ground that the case is not covered under SRO 43 of 1994, as one family member is a government servant is factually in correct and legally unsustainable because the provisions of SRO 43 of 1994, does not exclude the benefit to a dependent family member on the ground that one family member is already serving as government employee; iv. that government on consideration of the report of respondent No. 4 reported back the matter vide letter No. Edu-I/98/2007, dated 13.09.2007 with a request to furnish compassionate appointment case of the petitioner along with the relevant records required under law and the respondent No. 4 has recommended the case for relaxation of age and qualification bar of the petitioner for appointment; v. that the case of the petitioner has remained hanging from the Administrative Department to the lower rungs of the same department without bringing it to the logical conclusion; vi. that the petitioner while waiting for his appointment under SRO 43 of 1994, has passed Secondary School examination from the Board of School Education in the annual session 2008, petitioner has thereafter passed Hr. Secondary Part-II examination from the same Board in Science subjects in the annual session of 2010; vii. that when the petitioner had attained majority he again made an application to respondent No. 6 on 13.03.2011 bringing it to his notice that petitioner has passed 10+2 examination and is eligible for appointment as teacher with further information that he will attain the age of 18 years on 4.05.2011 and therefore, be appointed under SRO 43 of 1994. 4. On notice respondents have filed reply and have admitted the factual contentions of the petitioner raised in the petition, which is detailed out in the objections, relevant portion is extracted as under: "That petitioner's father working as Master in zone Qazigund, district Anantnag died in harness on 28-03-2005 leaving behind a widow, his parent and teenage children. 4. On notice respondents have filed reply and have admitted the factual contentions of the petitioner raised in the petition, which is detailed out in the objections, relevant portion is extracted as under: "That petitioner's father working as Master in zone Qazigund, district Anantnag died in harness on 28-03-2005 leaving behind a widow, his parent and teenage children. The petitioner applied for compassionate appointment under SRO-43 before respondent No. 6. However, examination of the case reveals that petitioner at that time was under age and did not possess requisite qualification for appointment UNDER SRO-43 and petitioner's case was submitted to the Director School Education, Kashmir, respondent No. 4 by respondent No. 5 vide its communications bearing No. CEO/A/NT/24147/06, dated 26-09-2006 and same was submitted to respondent No. 1 by respondent No. 4 vide its communication bearing No. Estt-III/NG/A/17/06/16925, dated 30-03-2007 for consideration on merits regarding relaxation of qualification and lower age bar of the petitioner by about 06 years, 04 months and 3 days as on 01-01-2005. The Administrative Department vide communication bearing No. Edu-I/198/2007, dated 11-10-2011 has observed that the instant case is not covered within the ambit of SRO-43, as one of the family member is a Govt. employee." 5. Heard learned counsel for the parties and perused the records available. 6. Contention of Mr. Lone learned counsel appearing counsel for the petitioner is that there is no delay on the part of petitioner for having submitted his case for compassionate appointment under SRO 43 of 1994, has substance. Petitioner immediately after the death of his father in the year 2006, has at the right earnest approached the respondents apprising them about his ineligibility and sought consideration for appointment after attaining eligibility. Respondents have in recognition of his claim processed the case of the petitioner and kept it pending till the time petitioner attained the eligibility, therefore, the basis for rejection on the ground of delay is unsustainable, hence rejected. 7. Further contention of Mr. Lone is that the claim of the petitioner has been rejected by misinterpreting the provisions of SRO 43 of 1994, in depriving the petitioner from the benefit of appointment on the ground that the claim of the petitioner is not covered under SRO 43 of 1994, as one of his family member is already government servant, has also substance. 8. Lone is that the claim of the petitioner has been rejected by misinterpreting the provisions of SRO 43 of 1994, in depriving the petitioner from the benefit of appointment on the ground that the claim of the petitioner is not covered under SRO 43 of 1994, as one of his family member is already government servant, has also substance. 8. Scanning of the provisions of SRO 43 of 1994, makes it clear, that a dependent of the deceased government employee can claim consideration for appointment on compassionate basis in terms of SRO 43 of 1994, after fulfilling all other conditions of eligibility stipulated in the rules. 9. Rule 3 of the J & K (Compassionate appointment) Rules 1994 provides that an eligible family member of a person who dies in harness may be appointed against a vacancy in the lower rank of non-gazetted service or class IV post having qualification as prescribed in the relevant recruitment rules. 10. From the examination of the pleadings and the documents on record, it is no where established that a family member of the deceased is already a government employee. Petitioner's claim on the touchstone of SRO 43 of 1994, has been, therefore, rejected on incorrect facts and by misinterpretation of the rules, as such, the rejection on this count deserves to be quashed. 11. Contention of Mr. Lone is that the claim of the petitioner has been arbitrarily rejected on the ground that the Department has submitted the case to government after four long years, has substance, as the case of the petitioner remained pending consideration before the respondents since 2006 and the delay cannot be attributed to the petitioner, therefore, on this count also the writ petition deserves to be allowed. View thus, this writ petition is allowed. By writ of certiorari, impugned communication No. Edu-I/198/2007, dated 11.10.2011 is hereby quashed. Respondents are directed to re-consider the matter for accord of consideration for appointment of petitioner on compassionate grounds in terms of SRO 43 of 1994, and rules occupying the field. The consideration shall be accorded within two months from the date copy of this order is served upon respondents.