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2013 DIGILAW 723 (JK)

Surjeet Kumar v. State Of J&K

2013-12-13

TASHI RABSTAN

body2013
1. By the medium of this writ petition, the petitioner is seeking his appointment against Class IV post under SRO 43 of 1994, on the grounds taken in it. 2. It has been averred in the writ petition that during the intervening night of 30th April and 1st May, 2006, some unknown terrorists cordoned off Village Kulhand and pulled out the inmates from their houses on gun point. They detained them in rooms at two places and opened indiscriminate firing, thereby killing many persons and seriously injuring others including the father of petitioner, namely, Bal Krishan, who was admitted in Government Medical College Hospital, Jammu, where he was treated for compound fracture in right leg bone by external fixator on 15.5.2006. He developed acute renal failure as a complication of compound fracture which was managed by Dialysis. Later on, he died due to complications on 31.07.2007. 3. The petitioner, being dependent on deceased father, applied for appointment on compassionate grounds and submitted application before respondent No. 3, who, vide No. 846/IR/D dated 25.09.2007 directed Tehsildar, Doda to process the case of petitioner in accordance with the provisions of SRO 43 of 1994 [Refer JKS Soft JKS/460]. On the basis of verification and report of Tehsildar, Doda, Assistant Commissioner Revenue, Doda issued dependent certificate in favour of petitioner under the provisions of SRO 43 of 1994 [Refer JKS Soft JKS/460] vide No. 801-02/ACR/ST dated 28.11.2007. The official respondents, vide order No. 03 of 2009 dated 27.06.2009, sanctioned an amount of Rs. 4.00 lac as compensation in lieu of employment in favour of next to kin of deceased Bal Krishan, father of the petitioner. 4. Due to non-consideration of the case of petitioner on compassionate grounds, he approached this Court by filing writ petition-in-hand seeking his appointment against Class IV post on compassionate grounds. 5. It is contended that at the time of death of the father of petitioner, the minimum educational qualification for Class IV post was middle pass, the same was raised to Matric vide SRO 99 of 2008 dated 07.04.2008. So treating the petitioner as not eligible for appointment for not being a matriculate is unjustified. Further, it is contended that sanctioning of additional compensation to the tune of Rs. 4.00 lacs in favour of NOKs of deceased Bal Krishan in lieu of appointment vide order No. 03/2009 dated 27.6.2009 amounts to denial of Govt. So treating the petitioner as not eligible for appointment for not being a matriculate is unjustified. Further, it is contended that sanctioning of additional compensation to the tune of Rs. 4.00 lacs in favour of NOKs of deceased Bal Krishan in lieu of appointment vide order No. 03/2009 dated 27.6.2009 amounts to denial of Govt. job to the petitioner, as at no point of time the petitioner or any member of his family had ever opted for compensation, in fact immediately after the death of his father, the petitioner had applied for appointment under SRO-43 of 1994 [Refer JKS Soft JKS/460]. It is contended that a number of dependents (NOKs) of victims of the same incident, who were middle pass or below, were appointed on compassionate basis in accordance with SRO-43 of 1994 [Refer JKS Soft JKS/460], but the petitioner has been denied the job, which is not only discriminatory, but also is violative of Articles 14 and 16 of the Constitution of India. It is further contended that in identical case one of the dependants of terrorists attack victims has been provided Government job besides exgratia. 6. The official respondents have filed objections, wherein it has been stated that since the petitioner was only Middle pass, therefore, was not eligible in terms of academic qualification for being appointed under SRO 43 in view of amendment of minimum qualification for Class-IV as Matric. Since under SRO 99 of 2008 [Refer 2008 (7) JKS JK-9 : JKS Soft JKS/199] the qualification prescribed for Class-IV post is 10th pass and maximum 12th pass, therefore an amount of Rs. 4.00 lac was sanctioned as compensation in lieu of employment in favour of next to kin of deceased Bal Krishan, father of the petitioner. It is also stated in the objections that in terms of the policy as revised by the Government in the year 2008, an ex-gratia amount of Rs. 5.00 lac in toto stood sanctioned in favour of petitioner. It is further contended that the case of petitioner came up for consideration under SRO 199 of 2008 dated 4.7.2008 [Refer 2008 (7) JKS JK-44 : JKS Soft JKS/457], as such, the petitioner was to fulfill the criteria in terms of the said SRO read with SRO 99 of 2008 [Refer 2008 (7) JKS JK-9 : JKS Soft JKS/199] . It is further contended that the case of petitioner came up for consideration under SRO 199 of 2008 dated 4.7.2008 [Refer 2008 (7) JKS JK-44 : JKS Soft JKS/457], as such, the petitioner was to fulfill the criteria in terms of the said SRO read with SRO 99 of 2008 [Refer 2008 (7) JKS JK-9 : JKS Soft JKS/199] . Further, it is contended that the petitioner was not eligible for grant of compassionate appointment under the aforesaid SROs as he was lacking in qualification. 7. While contradicting the stand taken by the respondents, learned counsel for petitioner also referred SRO 199 of 2008 dated 4.7.2008 [Refer 2008 (7) JKS JK-44 : JKS Soft JKS/457], whereby amendment was made to Compassionate Appointment Rules, 1994. Relevant amendment is reproduced hereunder:- "...... .In Rule 3 of the aforesaid Rules, after sub-rule (2) the following shall be inserted as sub-rule (3): Notwithstanding the provisions of the rules contained herein for compassionate appointment, the family members of the civilians killed in militancy related action as specified in clause (iii) of rule 2 shall be entitled to a cash compensation in lieu of appointment in government service of an amount specified by the government which shall be payable in their favour in a manner to be notified by the government: Provided that if any one among the family members of the deceased civilian fulfills the eligibility criteria prescribed under the aforesaid Rules for appointment into the government service or acquires such eligibility within one year from the date of death of the deceased person, then they shall have the option either to choose the government service or the cash compensation." 8. A plain reading of the above Rules reveals that it is the individuals who shall have the options either to choose the Government service or the cash compensation. 9. Petitioner submits that since his father was killed in militancy related violence and the cause of death was seriously injuring in indiscriminate firing by unknown terrorist during the intervening night of 30th April and 1st May, 2006, therefore, he is eligible for appointment on compassionate grounds under SRO 43 of 1994. The petitioner also submits that indentical case one of the dependants of terrorists' attack victims has been provided Government job besides relief of exgratia. 10. Heard learned counsel for the parties and perused the writ records. 11. The petitioner also submits that indentical case one of the dependants of terrorists' attack victims has been provided Government job besides relief of exgratia. 10. Heard learned counsel for the parties and perused the writ records. 11. Admitted facts of the case are that the father of petitioner died as a result of serious injury caused by the unknown terrorists in an attack during the intervening night of 30th April and 1st May, 2006 in Village Kulhand. It is also not denied that the petitioner applied for compassionate appointment through proper channel in the year 2007 itself and his case was processed by the authority under SRO 43 of 1994. 12. The further fact is that Rule 2 (iii) of Jammu and Kashmir (Compassionate Appointment) Rules, 1994 (SRO 43/94) deals with a situation where a civilian dies as a result of militancy and in case appointment is sought by a person, who is the member of the family and total income of the family from all sources does not exceed Rs. 3500 per month, the compassionate appointment can be allowed. 13. Rule 3 (1) deals with this aspect of the matter and is reproduced below:- "3 Appointment under these rules: (1) Not withstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of a non- gazetted service having qualification above Matriculation or to a class IV post if the candidate has read upto Matric." 14. The core issue to be determined by this court is as to whether SRO 199 of 2008 dated 4.7.2008 is applicable to the petitioner's case or he is entitled to the benefit under SRO 43 of 1994. 15. The case as projected by learned counsel for the petitioner is that the case of petitioner pertained to the year 2007, therefore, SROs 99 and 199 of 2008 are not applicable. At the relevant time SRO 43 of 1994 was applicable, therefore, the case of petitioner was duly processed by the respondents under the said SRO, which is evident from the communications dated 25.9.2007, 18.10.2007 and 28.11.2007 issued by the Assistant Commissioner Revenue, Doda. 16. At the relevant time SRO 43 of 1994 was applicable, therefore, the case of petitioner was duly processed by the respondents under the said SRO, which is evident from the communications dated 25.9.2007, 18.10.2007 and 28.11.2007 issued by the Assistant Commissioner Revenue, Doda. 16. The respondents in their counter affidavit/objections have admitted that the case of petitioner for compassionate appointment was received by the respondents on 28-11-2007 and when the same was under process as per SRO 43 of 1994, SRO 99 dated 07.04.2008 came to be issued, whereby the minimum qualification prescribed for appointment to Class IV posts was Matric. Further contention of respondents is that the Government vide Order No: 893-GAD of 2008 dated 04-07-2008, introduced a policy where under NOKs of the persons who are not eligible for appointment (with regard to educational qualification and age) are to be given cash compensation of Rs.5.00 Lacs in total, while the eligible candidates have option either to take case in lieu of employment or to get employment. Since the petitioner was middle pass and not eligible for appointment against class IV post, therefore, an additional cash compensation of Rs.4.00 Lacs has been sanctioned. A perusal of the stand taken by the official respondents reveals that the case of petitioner was processed under SRO 43 of 1994. 17. It is a well settled law laid down by the Apex Court as well as this Court that compassionate appointment is an exception to constitutional schemes of equitability under Articles 14 and 16 of the Constitution of India, and nobody can claim appointment by way of inheritance. It is also observed by the Apex Court that the Courts cannot order for appointment on compassionate grounds de hors the statutory provisions. 18. Admittedly, the case of petitioner was processed by the official respondent under SRO 43. When a statutory rule is in existence, then the same has to be implemented as it is. The Jammu and Kashmir Compassionate Appointment Rules, 1994 have been framed under and in exercise of powers conferred by Section 124 of the Constitution of Jammu and Kashmir. Therefore, the plea raised by the official respondents regarding non-consideration of the case of petitioner on the basis of SRO 43 of 1994, cannot be accepted. 19. The Jammu and Kashmir Compassionate Appointment Rules, 1994 have been framed under and in exercise of powers conferred by Section 124 of the Constitution of Jammu and Kashmir. Therefore, the plea raised by the official respondents regarding non-consideration of the case of petitioner on the basis of SRO 43 of 1994, cannot be accepted. 19. Independent of the above, respondents have issued letters of appointment on compassionate grounds in favour of those whose relations lost their lives in militancy related violence. 20. In view of the above discussion, this petition is disposed of with a direction to the official respondents to consider the case of petitioner strictly under SRO 43 of 1994 and pass appropriate orders in favour of the petitioner within a period of six weeks from the date a copy of this order is made available to them by the petitioner. 21. Disposed of as such along with connected CMA(s).