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2013 DIGILAW 701 (JK)

State Of J&K v. Chaman Dev Singh

2013-12-02

Hasnain Massodi, M.M.Kumar

body2013
M.M. Kumar, C.J. 1. The instant appeal under clause 12 of the Letters Patent is directed against judgment and order dated 30.04.2001 rendered by the learned Single Judge of this Court. 2. The matter pertains to appointment on compassionate ground and the appellant-State and its officer have rejected the claim of the writ petitioner-respondent on the ground that it was highly belated. The father of the writ petitioner-respondent expired in the year 1983 and the writ petition was filed in the year 1999. The learned Single Judge took notice of the fact that the writ petitioner-respondent was minor and a scholarship of Rs. 100/- was given to him to enable him to pass matriculation examination. However, in pursuance of proviso to Sub Section IV of the Jammu and Kashmir Compassionate Appointment Rules, 1994 enacted vide SRO 43 of 1994, the case of compassionate appointment is required to be finalized within three months from the date of death of a government employee. The case of the writ petitioner-respondent was rejected on the ground that his case was not covered under the rules and was also time barred. Taking the aforesaid factor into consideration the learned Single Judge accepted the claim and observed as under:- "As to in what respect, the petitioner lacked qualification and what stood in his way has not been indicated. It has not been elaborated as to how much was the delay. It has again not been indicated whether the case of the petitioner was to be examined under the old rules or as per the new rules. There is total non-application of mind. Once the respondents took a decision to mitigate the sufferings of the petitioner by giving him a scholarship then they should have taken this aim to a logical end and should have considered the request of the petitioner for compassionate appointment. It is not the case of the State that belated applications have never been allowed. In this situation, the State is directed to reconsider the matter and in doing so they would also indicate as to whether there is no such case where delay was of similar nature and compassionate appointment was declined........................... It is hoped that mere lip-service would not be done and the respondents would take note of the realities and there-after pass the appropriate order. It is hoped that mere lip-service would not be done and the respondents would take note of the realities and there-after pass the appropriate order. The requirement to mitigate the financial crises, if any, faced by the petitioner and his family is required to be taken note of. This would be taken note of." 3. Feeling aggrieved the State has approached this Court by raising the issue as to whether compassionate appointment could be offered after a lapse of 15 years or whether it is a vested right which can be exercised at any time in future. 4. It has come on record that father of the writ petitioner-respondent was working as Lecturer in the School Education Department. He died in harness on 07.06.1983. On 07.01.1985 sanction was accorded to the grant of scholarship of Rs. 100/-per month in favour of the minor schooling going children including the writ petitioner-respondent, till such time they pass matriculation examination. The writ petitioner-respondent is born on 03.04.1973 and he attained majority on 03.04.1991. He earlier filed SWP no. 277/1998. The aforesaid petition was disposed of by directing the appellants to treat the same as representation and take a decision in accordance with law. The case of the writ petitioner-respondent was considered in the light of rules and the same was rejected vide order dated 28.01.1999. The writ petitioner-respondent then filed SWP no. 306/1999 which is relatable to the instant appeal. 5. Mr. Ravinder Sharma, learned State counsel, has argued that compassionate appointment cannot be claimed as a matter of right and inordinate delay in seeking such appointment would itself lead to rejection of such claim. Mr. Sharma has submitted that the learned Single Judge has failed to take into consideration the aforesaid well settled principle of law. 6. No one has put in appearance on behalf of the writ petitioner-respondent. It is also pertinent to mention that the operation of the impugned judgment and order was suspended by this Court vide order dated 17.09.2001. 7. It is now well settled that compassionate appointment is an exception to the general rule which require that any appointment to the public service has to be made on merit by inviting applications for considering the competing claims. It is one exception which aims at providing relief to the bereaved family by accommodating one of his dependents in a vacancy. It is now well settled that compassionate appointment is an exception to the general rule which require that any appointment to the public service has to be made on merit by inviting applications for considering the competing claims. It is one exception which aims at providing relief to the bereaved family by accommodating one of his dependents in a vacancy. The rationale is to give succor to the family which has been plunged into penury due to untimely death of its bread earner. Hon'ble the Supreme Court in the case of Haryana State Electricity Board v. Hakim Singh (1997) 8 SCC 85 has observed that providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public service. Similar observations have been made in the case of Commissioner of Public Instructions v. K. R. Vishwanath, (2005) 7 SCC 206 . It is equally well settled that compassionate appointment does not create a vested right which could be exercised at any time in future. It cannot be claimed or offered after a lapse of time when the crises plunging the family into penury has come to an end. (Eastern Coalfield Ltd v. Anil Badyakar & Ors (2009) 13 SCC 112 ). Therefore, the delay would constitute a valid basis to refuse compassionate appointment. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the cases of State of Manipur v. Md. Rajaodin (2003) 7 SCC 511 and National Institute of Technology and ors v. Niraj Kumar Singh, (2007) 2 SCC 481 . 8. In the present case the father of the writ petitioner-respondent died in harness on 07.06.1983 and the first writ petition was filed by the writ petitioner-respondent after 15 years. It is pertinent to mention that he attained majority on 03.04.1991 as his date of birth is 03.04.1973. In such circumstances the filing of the writ petition was belated and the objection taken by the appellant-State should have weighed with the learned Single Judge. 9. The writ petitioner-respondent by now has attained the age of more than 40 years. It would not be practicable to ask him to join government service at this stage. Therefore, the judgment of the learned Single Judge cannot be sustained and is thus liable to be set aside. 10. As a sequel to the above discussion this appeal succeeds. 9. The writ petitioner-respondent by now has attained the age of more than 40 years. It would not be practicable to ask him to join government service at this stage. Therefore, the judgment of the learned Single Judge cannot be sustained and is thus liable to be set aside. 10. As a sequel to the above discussion this appeal succeeds. The judgment and order of the learned Single Judge dated 30.04.2001 is set aside. The parties are left to bear their own costs.