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2017 DIGILAW 204 (JK)

Vishiv Deep Singh v. State Of Jammu And Kashmir

2017-04-19

ALOK ARADHE, BADAR DURREZ AHMED

body2017
JUDGMENT : Badar Durrez Ahmed, J. The present Letters Patent Appeal is directed against the judgment dated 01.01.2016. 2. The appellant had filed the writ petition (SWP No. 802/2012) seeking issuance of a writ of mandamus requiring the respondents, in particular Respondent No. 3, to issue a letter of appointment in favour of the petitioner against a vacancy in the lowest rank of the non-gazetted service of Laboratory Assistant commensurate with his educational qualification in terms of the SRO 43 of 1994. A prayer had also been made for the quashing of the communication dated 11.02.2011, whereby the representation of the petitioner seeking re-consideration of his case for appointment on compassionate grounds as Laboratory Assistant had been rejected. 3. The appellant's father (late Mr. Darshan Singh) died on 20.01.2007. At that time, he was a General Line Teacher in the School Education Department. The appellant was a minor at that time and upon attaining the age of majority on 29.03.2009, he sought consideration for compassionate appointment in terms of SRO 43 of 1994. The Respondent No. 3 accorded sanction for the temporary appointment of the appellant as a Class-IV employee in the pay scale of Rs. 4440-7440 with grade pay of Rs. 1300/- in the District Cadre, Jammu, by an order dated 30.11.2010 and the Respondent No. 5, pursuant to the sanction accorded, appointed the appellant as Laboratory Bearer by an order dated 29.01.2011. 4. The learned Single Judge dismissed the writ petition on the ground that the appellant had already been appointed as Laboratory Bearer and that he had accepted such appointment and had joined the said post. The learned Single Judge had placed reliance on the decision of a Division Bench of this Court in the case of State & Anr. v. Bimal Indu Sharma & Ors.: 2012 (4) JKJ 1046 [HC] (DB). The learned Single Judge observed that in that case, it had been held that as and when a person got appointment on compassionate grounds and joined the post offered, the process of compassionate appointment in his favour would come to an end. Consequently, the learned Single Judge, in the light of the said decision, rejected the writ petition. Being aggrieved thereby, the present appeal has been filed by the appellant. 5. Consequently, the learned Single Judge, in the light of the said decision, rejected the writ petition. Being aggrieved thereby, the present appeal has been filed by the appellant. 5. The learned counsel for the appellant submitted that Rule 3 of SRO 43 of 1994, had not been considered or followed by the learned Single Judge. The said Rule 3 of SRO 43 of 1994, reads as under: "3. Appointment under these rules; (1) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or post 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 up to Matric. 6. According to the learned counsel for the appellant, the said Rule 3 provided for two categories of employment on compassionate grounds. Those having qualification above matriculation are to be appointed against a vacancy in the lowest rank of a non-gazetted service and those having qualification up to matric are to be appointed in a Class-IV post. It was submitted by the learned counsel for the appellant that the appellant fell in the former category inasmuch as he had passed the 10+2 examination. Accordingly, the appellant ought to have been appointed against the vacancy in the lowest rank of a non-gazetted service. According to the learned counsel for the appellant, he ought to have been appointed as a Laboratory Assistant (which was the lowest rank of non-gazetted service in the said department) and not as a Laboratory Bearer (which was a Class-IV post). 7. The learned counsel for the appellant placed reliance on a decision of a Division Bench of this Court in the case of JKJ Soft JKJ/19117 Nirmala Devi v. State: 2002 SLJ 364 . 8. On the other hand, the learned counsel for the respondents placed reliance on a decision of the Supreme Court in the case of State of Rajasthan v. Shri Umroa Singh: (1994) 6 SCC 560 . In the said decision, it has been held that the right to be considered for appointment on compassionate grounds once consummated, no further consideration on compassionate grounds could ever arise. In the said decision, it has been held that the right to be considered for appointment on compassionate grounds once consummated, no further consideration on compassionate grounds could ever arise. Based on this, the learned counsel for the respondents submitted that the appellant having accepted the compassion ate appointment in the post of Laboratory Bearer cannot now take the plea for appointment as a Laboratory Assistant inasmuch as the appointment on compassionate ground had been consummated. 9. The learned counsel for the respondents also placed reliance on a Division Bench decision in the case of. In that case also, it had been held that an applicant for compassionate appointment cannot claim a post commensurate to his qualification and it is good enough if some job is given to such an applicant. It was also observed that "as per law", such an applicant cannot claim any post commensurate to his qualification of B.Com. In that case, decisions of the Supreme Court in the case of State of U.P. v. Pankaj Kumar Vishwas: (2013) 11 SCC 178 and Umesh Nagpal v. State of Haryana: 1995 (2) SLR 571 had been referred to. 10. The learned counsel for the respondents also submitted that the learned Single Judge had correctly placed reliance on the decision of the Division Bench of this Court in the case of State & Anr. V. Bimal Indu Sharma: 2012 (4) JKJ 1046 [HC]. 11. After considering the arguments advanced by the learned counsel for the parties, we are of the view that the present issue had been settled by a Division Bench of this Court in Nirmala Devi's case (supra). There, a specific question had been raised as to whether a person seeking compassionate appointment could insist that he or she should be appointed against a post which is above a Class-IV post. The said question was raised specifically in the context of Rule 3 of the SRO 43 of 1994. After considering various decisions including the decisions of the Supreme Court, the Division Bench came to the following conclusion: "6. The aforementioned decisions were noticed in LPA No. 94/99 and ultimately it was observed that in terms of Rule 3, if a person possesses qualification which is above Matriculation then he or she is to be offered a post other than Class-IV post. The aforementioned decisions were noticed in LPA No. 94/99 and ultimately it was observed that in terms of Rule 3, if a person possesses qualification which is above Matriculation then he or she is to be offered a post other than Class-IV post. In view of what has been stated above, it is concluded: (i) that an employee has no vested right to seek compassionate appointment; (ii) once the State takes a decision to make compassionate appointment, then it is bound by Rule 3 and the appointments are to be made in accordance with that Rule. These appeals are accordingly allowed. The respondents are directed to consider that claim of the appellants in accordance with Rule 3. Let the consideration be done within three months from the date of copy of the order is made available by the appellants to the respondents." 12. We are of the view that the said decision completely covers the present case. 13. However, the learned counsel for the respondents had placed reliance on the decision in Bimal Indu Sharma's case (Supra). On going through the said decision, we note that it has not noticed the earlier decision in the case of Nirmala Devi (supra). Therefore, we are constrained to hold that the decision in Bimal Indu Sharma's case (supra) was rendered per incuriam. Apart from that we find that the factual situation in Bimal Indu Sharma's case (supra) was quite different. This is clearly reflected in Paragraph 13 of the said decision, which reads as under:- "13. When Respondent No. 1 had accepted appointment as Assistant Sub-Inspector and then had filed writ petition in the year 1994 itself whereunder right to claim higher post ultimately has been rejected, was it still open for him to file fresh writ petition that too after a gap of eight years" The answer has to be 'No', because he has accepted appointment then had filed writ petition and in compliance to the direction issued in the said writ petition, his case was considered and rejected, which order of rejection has not been challenged, meaning thereby he was satisfied, therefore, he shall now be estopped for claiming relief which has already been declined to him." 14. Therefore, the decision in Bimal Indu Sharma's case (supra) cannot be relied upon as a precedent. 15. Therefore, the decision in Bimal Indu Sharma's case (supra) cannot be relied upon as a precedent. 15. The decision in the case of Behari Lal Dhar (supra) was rendered without any reference to Rule 3 of SRO 43 of 1994. In fact, in that decision, it is said that as per law, an applicant cannot claim any post commensurate to his qualification, whereas Rule 3 specifically provides for such a situation. 16. Lastly, we need to discuss the decision of the Supreme Court in the case of Shri Umroa Singh (supra). That decision is clearly distinguishable. First of all, it was not rendered in the context of Rule 3 of SRO 43 of 1994, but in the context of Rule 5 of the Rajasthan Recruitment of Dependence of Government Servants (Dying while in-service) Rules, 1975, which is entirely different. Secondly, as noted in paragraph 8 of the said decision, the applicant in that case had applied for appointment on compassionate ground as Sub-Inspector or LDC according to the availability of the vacancy. He had ultimately been appointed to the post of LDC which he had accepted and it is in that context that the Supreme Court observed that the right to be considered for appointment on compassionate grounds had been consummated and no further consideration on compassionate grounds could arise. 17. The said decision of the Supreme Court is, therefore, clearly distinguishable and would not have any application to the facts of the present case. 18. In view of the foregoing, the impugned judgment is set aside and the respondents are directed to consider the case of the appellant in the light of the Rule 3 of SRO 43 of 1994, as interpreted above. The consideration be concluded within three months by a speaking order. Accordingly, with the aforesaid directions, the appeal is allowed. Appeal allowed.