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2017 DIGILAW 31 (JK)

Vinay Gupta v. State of Jammu and Kashmir

2017-02-01

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

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JUDGMENT : N. Paul Vasanthakumar, J. This L. P. appeal is preferred by the appellant against the order made in SWP No. 87/2003, dated 28.10.2016, dismissing his writ petition, seeking directions to the respondents to appoint the appellant as Inspector in J&K Police with effect from 17.11.1999 on compassionate grounds under SRO 43 of 1994. 2. The case of the appellant before the Writ Court was that his elder brother, Ajay Gupta was serving as Sub-Inspector in the Jammu and Kashmir Police who died in harness in October, 1998. On staking a claim for compassionate appointment under SRO 43 of 1994, the appellant was appointed as Assistant Sub-Inspector in the Jammu and Kashmir Police by order, dated 17.12.1999. The appellant accepted the said appointment and is serving in Police Department. He made a representation to the respondents for his appointment on the higher post of Inspector on compassionate grounds in view of his educational qualification and status of the family on the analogy of one Shelly Singh who was given appointment as Sub-Inspector based on his qualification on compassionate grounds. The representation having not been decided, the appellant preferred the writ petition with the above referred prayer. 3. The learned single Judge, taking note of the fact that appellant has accepted the post of Assistant Sub-Inspector without any protest and the compassionate appointment having become complete, dismissed the writ petition by order, dated 28.10.2016 against which order this appeal is preferred by contending that the learned single Judge has not taken into consideration the fact of appointment of similarly situated persons as Inspectors/Sub-Inspectors and it was only in the case of the appellant that Sub-Inspector post was not given to him and therefore the discrimination meted out to the appellant has not been considered in its right perspective. 4. It is not in dispute that brother of the appellant, who was serving in the Police Department as Sub-Inspector died in harness and on submitting claim for compassionate appointment, the respondents appointed the appellant as Assistant Sub-Inspector in the year 1999. The appellant accepted the post, joined and remained serving on the said post about four years when he filed the writ petition seeking his appointment against higher post of Inspector. 5. The appellant accepted the post, joined and remained serving on the said post about four years when he filed the writ petition seeking his appointment against higher post of Inspector. 5. The issue as to whether once the candidate accepts appointment against any post on compassionate grounds, his right to be considered on compassionate grounds is consummated or not, came up for consideration before Hon'ble the Supreme Court in the decision, reported in (1994) 6 SCC 561 (State of Rajasthan v. Shri Umrao Singh), wherein it is held thus:- '6. Admittedly the respondent's father died in harness while working as Sub-Inspector, C.I.D. (Special Branch) on 16.3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-Inspector or L.D.C. according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of L.D.C. by order, dated 14.12.1989. He accepted the appointment as L.D.C. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of 'endless compassion-. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned single Judge of the High court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case. 6. Again in the decision, reported in (2007) 6 SCC 162 : (2007 AIR SCW 3305) (I.G (Karmik) and Ors. v. Prahlad Mani Tripathi), Hon'ble the Supreme Court has reiterated that once the right is consummated any further or second consideration for higher post on the ground of compassion would not arise. In the decision, reported in 2012 (4) JKJ 1046 (State v. Bimal Indu Sharma and Ors.) a Division Bench of this Court has held that process of compassionate appointment comes to an end with joining of the beneficiary. The Division Bench judgment, the learned counsel for the appellants is relying, i.e. LPASW No. 104/2005, dated 15.03.2009 (State and Ors. v. Sanjeev Khajuria and Ors.) has not noticed the above two judgments of Hon'ble the Supreme Court referred above. 7. The Division Bench judgment, the learned counsel for the appellants is relying, i.e. LPASW No. 104/2005, dated 15.03.2009 (State and Ors. v. Sanjeev Khajuria and Ors.) has not noticed the above two judgments of Hon'ble the Supreme Court referred above. 7. The appellant having accepted the appointment and having joined the post and thereafter laying his claim for a higher post after four years, the learned single Judge was right in rejecting his claim after having joined against the post. We do not find any reason the interfere with the order of the learned single Judge and the appeal is dismissed in limine.