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2020 DIGILAW 598 (JK)

Union Territory of J&K v. Saim Majeed Rather

2020-11-17

RAJNESH OSWAL, SANJEEV KUMAR

body2020
Order CM No. 811/2019 The appeal by the state under clause-12 of the Letters Patent, challenging the order/judgment of the writ Court dated 29th October 2018, passed in SWP No. 530/2018, is delayed by 367 days. The learned counsel for the respondent very fairly states that he has no objection to the condontion of delay application, provided the matter is heard on merits at an earliest. The application for the reasons, assigned therein is, allowed and the delay of 367 days in filing the LPA is condoned. CM disposed of. LPA No. 350/2019 1. Impugned in this appeal is judgment dated 29th October 2018, passed in SWP No. 530/2018, whereby the writ petition, filed by the respondent seeking his compassionate appointment under Jammu and Kashmir Compassionate Appointment Rules 1994 (The Rules of 1994) on account of death in harness of his father, Abdul Majid Rather, has been accepted and direction, issued to the appellant to issue formal order of compassionate appointment in favour of the respondent under the rules of 1994. 2. With a view to appreciate the grounds of challenge, urged by the appellants to assail the impugned judgment, passed by the learned writ Court, it is necessary to briefly notice few relevant facts. 3. The father of the respondent, namely Abdul Majid Rather came to be initially appointed as Junior Instructor in the appellant department against the available vacancy in the pay scale of 1200-2040 (pre-revised vide order No. 471-HD of 1995) dated 9th September 1995. The initial appointment was on stopgap basis for a period of 89 days but the father of the respondent was allowed to continue in services of the appellants continuously and uninterruptedly, without any actual break in the service. He, however, became entitled to regularization of his services as Junior Instructor under the Jammu and Kashmir Civil Service (Special Provisions) Act-2010, and his case was recommended by the appellant department along with other eligible candidates and the same was also cleared by the Empowered Committee, constituted under the Act of 2010. The matter was forwarded to the Administrative Department for issuance of formal order of regularization of the father of the respondent. While the matter was pending consideration of the Administrative department and formal order of regularization was yet to be issued, the father of the respondent died in harness on 4th February 2016. The matter was forwarded to the Administrative Department for issuance of formal order of regularization of the father of the respondent. While the matter was pending consideration of the Administrative department and formal order of regularization was yet to be issued, the father of the respondent died in harness on 4th February 2016. The respondent submitted an application before the Director, handicrafts on 24th October 2016, seeking his appointment on compassionate basis under the rules of 1994. The Directorate of Handicrafts took up the case of the respondent’s father with the administrative department but the administrative department vide its communication dated 6.12.2016, advised the respondent to wait till regularization order in favour of the respondents father is issued. 4. Aggrieved by the inaction of the appellants, respondent filed the SWP No. 2077/2017, which was disposed of by the learned Single Bench of this Court on motion hearing vide judgment dated 12th October 2017, directing the appellants to decide the claim of respondent for appointment on compassionate grounds by passing a speaking order within a period of six weeks from the date receipt of certified copy of the order by the respondents, bearing in mind the provisions of SRO 43 of 1994. In compliance, the appellant No. 2 vide its order No. 93-HDL of 2018 dated 9th February 2018, considered the case of the respondent and rejected the same on the ground that the same is devoid of any merit. It is this order of consideration dated 9th February 2018, which was assailed by the respondent in the writ petition, disposed of by the learned writ Court in terms of the impugned judgment. 5. The writ Court vide judgment impugned, not only quashed the consideration order dated 9th February 2018, but also directed the appellants to issue formal order of appointment in favour of the respondent under SRO 43 of 1994, after issuing formal orders of regularization of services of deceased Abdul Majid Rather, w.e.f, the date he was so entitled to for the benefit under law. 6. Being not satisfied with the judgment of learned Single Judge, the appellants are before us through the medium of instant letters patent appeal. 6. Being not satisfied with the judgment of learned Single Judge, the appellants are before us through the medium of instant letters patent appeal. The impugned, judgment of the learned writ Court has been assailed by the appellants inter-alia on the ground that the benefit of compassionate appointment under the rules of 1994 is available only to the next of kins/dependents of a Government employee but, at the time of death, the father of the respondent was only an ad hoc appointee and was not holding any post in the substantive capacity. 7. Having heard learned counsel for the parties and perused the record, we are of the view that the judgment of the learned writ Court, impugned in this appeal is perfectly valid and falls within the four corners of law and, therefore, cannot be interfered with. 8. It is not the case of the appellants that the father of the respondent was not entitled to regularization as Junior Instructor under the Act of 2010 but their case is that on the date he died, his services had not been regularized by any formal order, issued by competent authority. From the perusal of the order dated 93-HDL of 2018 dated 9th February 2018, which was subject matter of challenge before the learned writ Court, it is abundantly clear that the appellant had not only found the respondent’s father entitled to regularization but had also placed his case before the Empowered Committee, constituted under the Act of 2010. It is also noted by the appellant No. 2 in the aforesaid order that the case of the father of respondent for regularization had also been cleared by the Empowered Committee and the same had been forwarded to the Administrative department for issuance of formal order of regularization. The regularization order in favour of the deceased father of the respondent, however, could not be issued as in the meanwhile, the father of the respondent died on 4th February 2016. 9. In view of the aforesaid admitted factual position, it is axiomatic that had the appellants acted with requisite promptitude and considered the case of the father of respondent immediately after coming into force of the act of 2010, the father of the respondent would have been regularized somewhere in the year 2010 itself. 9. In view of the aforesaid admitted factual position, it is axiomatic that had the appellants acted with requisite promptitude and considered the case of the father of respondent immediately after coming into force of the act of 2010, the father of the respondent would have been regularized somewhere in the year 2010 itself. The procedural wriggles and apathy of the appellants delayed the regularization of the father of the respondent for almost six years and by the time the process of regularization could reach its finality, the father of the respondent unfortunately died on 4th February 2016. 10. In that view of the matter, accepting the plea of the appellants would tentamount to putting premium on their inaction and indolence. The writ Court was, thus correct in arriving the conclusion that the appellants need to issue mandamus so that a formal order of regularization in favour of deceased Abdul Majid Rather, the father of the respondent is issued paving the way for grant of benefit of compassionate appointment under the Rule of 1994 in favour of the respondent. 11. The view taken by the learned writ Court is, thus, unexceptionable and we concur with it. 12. For the forgoing reasons, we find no merit in this appeal and the same is, accordingly, dismissed.