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2018 DIGILAW 472 (JK)

JAVED AHMAD BHAT v. STATE

2018-07-04

M.K.HANJURA

body2018
ORDER : 1. The petitioner, seeks a writ of Certiorari in quashing the order bearing No. Edu-I/293/2010 dated 24-09-2015, impugned herein. A writ of mandamus is also sought for commanding the respondents to select and appoint the petitioner against any class IV post under SRO 43 of 1994. 2. The facts that are essential for the decision of the petition on hand are that the father of the petitioner, namely Mohammad Maqbool Bhat, who was working as a teacher in the Higher Secondary School, Panzgam, Pulwama, died in harness in the year 2010 due to cardiac arrest. The petitioner, who is an under matric, has an elder brother also, who is already a Government employee but is living separately and has no concern with the family of the petitioner. It is further stated that the petitioner has another brother as well who is living with him and he too is unemployed. It is further stated that the family of the deceased employee, who was the sole bread earner of the family, is without any source of income. 3. It is further stated that the petitioner while applying before the respondent department for his appointment on compassionate grounds, under the SRO 43 of 1994, projected all the facts before the respondents. It is further stated that since the family of the petitioner faced a serious financial crunch and had no source of income, the respondent No. 4, Director School Education, Kashmir, in terms of his communication dated 27-10-2010, recommended the case of the petitioner, for relaxation of qualification to the General Administrative Department, under rule (7) of the SRO 43 of 1994. 4. It is stated further that the Government Instructions, directed that compassionate appointment should not be given to a person in case any of his/her family member is already employed in the Government. The petitioner has further stated that though his case for relaxation of qualification by the Government was accepted but the case for his appointment on compassionate grounds was kept in abeyance because of the instructions of the Govt., which had no bearing on his case as his brother, who is already employed, is not living with them for the last so many years. He separated from his father before his death and such a plea could not have been made the basis for denying the benefit to the petitioner that accrued to him under SRO 43. He separated from his father before his death and such a plea could not have been made the basis for denying the benefit to the petitioner that accrued to him under SRO 43. The petitioner has further stated that by a subsequent Govt. Instruction, which had the effect of revoking the previous one, the petitioner approached the respondents and prayed that he be allowed to reap the fruits of the SRO 43 of 1994 by providing him the appointment on compassionate grounds, that too when relaxation in the qualification had already been granted in his favour. However, much to his dismay, he was again denied the appointment in terms of the order dated 24-09-2015, impugned herein, without any justification, on the ground that there are no extraordinary circumstances that would prompt the respondents to issue the orders of his appointment under SRO 43. The petitioner has finally stated that in view of the facts and circumstances of the case, the writ petition be allowed and the impugned order, being bad in law, be quashed. 5. The respondent NOs. 2 & 4 have filed the objections, wherein it is stated that the challenge thrown to the impugned order is misplaced and misconceived and the writ petition is liable to be dismissed in limine, inasmuch as, the petitioner has not come to the Court with clean hands and has misrepresented the facts. Besides it is also contended that none of the legal, fundamental or constitutional rights of the petitioner have been violated in any manner whatsoever. The petitioner has raised disputed questions of fact, which cannot be adjudicated upon in a writ petition before this Court. 6. It is further stated in the objections that though the case of the petitioner was accorded due consideration, but the same was rejected by the competent authority on the ground that the extraordinary circumstances, which are a sine qua non to invoke the provisions of the SRO 43 for grant of compassionate appointment, have not been established in the case on hand. The respondents have further submitted that the observations made in the impugned order do not suffer from any malice or any illegality and the allegations levelled in the writ petition by the petitioner are unfounded and baseless. In the end, the respondents have prayed for the dismissal of the writ petition in view of the facts and circumstances of the case. 7. In the end, the respondents have prayed for the dismissal of the writ petition in view of the facts and circumstances of the case. 7. Heard & considered. 8. The pivot, round which the denial of consideration to the case of the petitioner for his appointment on compassionate basis revolves, is that the petitioner has not been able to carve out the extra ordinary circumstances required for seeking appointment on compassionate grounds under SRO 43 of 1994. The order of rejection appears to have been passed on surmises and conjectures. What extra ordinary circumstances were required to be spelt out by the petitioner to seek appointment on compassionate basis, have not been detailed anywhere in the order of the rejection of the claim by the respondents. In the first round, the respondents refused compassionate appointment to the petitioner on the ground that since one of his brothers’ is a Government employee, therefore, the compassionate appointment cannot be granted in his favour. The Government of Jammu and Kashmir by order dated 19.05.2014 on the subject “Clarification regarding the compassionate appointment under SRO-43 of 1994” after quoting OM dated 16.03.2012 which directed that in case any family member of the deceased Government employee, who died in harness, is already in Government Service, the compassionate appointment of another member is unjustified, directed the withdrawal of the said direction with a request to all the Administrative Secretaries to settle all such cases, including those rejected earlier on this ground, strictly under the relevant provisions of SRO-43 of 1994 as amended from time to time. 9. The Director School Education forwarded the case of the petitioner for his compassionate appointment to the Commissioner Secretary to the Government Education Department, Civil Secretariat, Srinagar, vide his No. Estt/NG/B/69/2010/SRO/2156 dated 27.10.2010, the contents of which are reproduced herein in below verbatim: “Subject: Compassionate appointment case of Javid Ahmad Bhat S/o Late Maqbool Bhat, deceased teacher HSS Panzgam Pulwama in terms of SRO-43 of 1994. Madam, Mr. Mohd Maqbool Bhat having his date of birth 30/04/1952 was working as teacher in HSS Panzgam and was retiring on 30/04/2010 but died on 06/04/2010. His son namely Javid Ahmad Bhat (Middle pass) with date of birth 20/09/1982 has applied for appointment on compassionate grounds. Madam, Mr. Mohd Maqbool Bhat having his date of birth 30/04/1952 was working as teacher in HSS Panzgam and was retiring on 30/04/2010 but died on 06/04/2010. His son namely Javid Ahmad Bhat (Middle pass) with date of birth 20/09/1982 has applied for appointment on compassionate grounds. In order to consider the son of deceased teacher for appointment as Class IV employee in District Pulwama, it is requested kindly to kindly to consider the case for relaxation of qualification bar in his favour as he is only Middle pass while as the minimum qualification required for direct recruitment to class IV posts is matriculation. The requisite documents of the applicant viz date of birth/qualification/dependent certificate/state subject and undertaking from the applicant as well as other dependents are enclosed in original for necessary action”. 10. The Under Secretary to Government School Education Department vide his communication bearing No. Edu-I/293/2010 dated 24.09.2015 directed as follows: “The applicant is son of a deceased Govt. official. One of his siblings is already in Govt. service. While GAD has left it for the Department concerned to give benefit of SRO 43 even to a person whose another family member is a Govt. employee, it would be unjustified either on compassionate ground or the ground of equity (i.e., opportunity to all since job to applicant means denial to another) to appoint such an applicant unless there are extra-ordinary circumstance which, however, are not so in the instant case.” 11. On the face of the above, what gets revealed is that the claim of the petitioner has been rejected, primarily on the ground that one of his siblings is already in Government service which position has already been clarified by the Government vide OM bearing No. Edu-I/293/2010 dated 24.09.2015. It is also not clarified in the order as to on what count was the application of the petitioner, seeking compassionate appointment, lacking in the material particulars. Therefore, the impugned order is liable to be set aside, as a corollary to which, the petition of the petitioner is allowed and the impugned order bearing No. Edu-I/293/2010 dated 24-09-2015 (annexure-F) is quashed. Respondents are directed to reconsider the matter relating to the appointment of the petitioner on compassionate grounds in terms of SRO 43 of 1994 and the rules governing the field. Respondents are directed to reconsider the matter relating to the appointment of the petitioner on compassionate grounds in terms of SRO 43 of 1994 and the rules governing the field. Needful be done within a period of two months from the date the copy of this order is served on them. 12. Writ petition is, accordingly, disposed of along with connected IAs.