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2022 DIGILAW 503 (JK)

State of Jammu & Kashmir v. Ghulam Mohammad Banday

2022-09-16

RAJNESH OSWAL, SANJEEV KUMAR

body2022
JUDGMENT Sanjeev Kumar, J. - One Ghulam Mohammad Banday ['the review petitioner'] is not happy with our judgment dated 31.12.2021 passed in LPA No.103/2019 and is seeking review of the same on various grounds. 2. Before we advert to the grounds urged by learned counsel for the review petitioner in support of his review petition, it is necessary to set out few facts in the context, whereof this Court rendered judgment dated 31st December, 2020 in LPA No.103/2019. 3. The father of the review petitioner, Late Ghulam Nabi Banday, was a Road Supervisor in the Department of Public Works, who died in harness on 24th September, 1987. At the time of his death, the review petitioner was only eight years old. He passed his middle standard examination in the year 1993 and, accordingly, submitted an application for compassionate appointment. His claim was found to be belated and, therefore, was not considered favourably by the respondent-State. 4. The review petitioner filed SWP No.120/1999, which was dismissed by the Single Judge on the ground that in terms of SRO 43 of 1994, the review petitioner had not acquired the requisite minimum qualification within six months from the date of death of his father. LPA preferred against the judgment of the learned Single Judge was allowed by the Division Bench of this Court with a direction to the respondent-State to reconsider the case of the review petitioner in terms of the rules as were in vogue at the time of death of his deceased father. 5. When the judgment was not complied with, a contempt petition was filed by the review petitioner. In response to the notice issued in the contempt petition, the respondents placed on record consideration order rejecting the claim of the review petitioner for compassionate appointment. The rejection order passed by the respondents became subject matter of challenge in SWP No.1662/2016. The writ petition was allowed and the consideration order was quashed. The respondents were directed to appoint the review petitioner on any Class-IV post on compassionate basis within a period of six weeks. 6. The respondent-State, feeing aggrieved and dissatisfied with the judgment of the learned Single Judge, filed LPA No.103/2019. This Court, after considering the rival contentions and having gone through the entire record, arrived at the conclusion that at the time of death of the deceased father of the review petitioner, SRO 122 of 1983 was applicable. 6. The respondent-State, feeing aggrieved and dissatisfied with the judgment of the learned Single Judge, filed LPA No.103/2019. This Court, after considering the rival contentions and having gone through the entire record, arrived at the conclusion that at the time of death of the deceased father of the review petitioner, SRO 122 of 1983 was applicable. 7. Clause (ii) of first Proviso to Rule 5(1)(viii) of the Jammu and Kashmir Civil Services (Decentralization and Recruitment to Non-Gazetted) Rules, 1969 as amended vide SRO 122 of 1983 dated 24th March, 1983, provided as under: '(II) In most deserving cases, the concerned Head of the Department may recommend to the competent authority- (a) For relaxation of his/her age bar not beyond 40 years in the case of upper age limit and by not more than four years in the case of lower age limit.' 8. Relying upon the aforesaid statutory provision restricting the discretion of the competent authority to grant relaxation in lower age limit only upto four years, this Court found the review petitioner not entitled to compassionate appointment and his case being barred by limitation. The judgment of the learned Single Judge was, accordingly, set aside vide judgment under review. 9. The review petitioner is seeking review of the judgment, primarily, on the ground that this Court had not considered a judgment on the issue rendered by a co-equal Bench in the case of Sardar Vikram Singh vs. State of J&K, (2013) 2 JKJ 126 and host of other judgments, wherein it has been authoritatively laid down by this Court that delay in making an application for compassionate appointment cannot be a ground to deny the relief prayed for, more so when the financial position of the applicant and his family has not undergone any substantial change. 10. We have gone through the judgment rendered in the case of Sardar Vikram Singh and other judgments appended with the review petition but we could not find that in any of the judgments, SRO 122 of 1983, particularly the Clause which we have reproduced hereinabove, has been discussed anywhere. The judgment of Sardar Vikram Singh or for that matter other judgments relied upon by the review petitioner do not lay down any firm proposition of law that an application for compassionate appointment can be made at any time notwithstanding the statutory prescription to the contrary. 11. The judgment of Sardar Vikram Singh or for that matter other judgments relied upon by the review petitioner do not lay down any firm proposition of law that an application for compassionate appointment can be made at any time notwithstanding the statutory prescription to the contrary. 11. It is trite law that when a statute provides for doing a thing in a particular manner, the same should be done only in the said manner or not at all. The appellants had no discretion in the matter but to abide by the statutory provisions of the Jammu and Kashmir Civil Services (Decentralization and Recruitment to Non-Gazetted) Rules, 1969 as amended vide SRO 122 of 1983. 12. Despite his vehemence, learned counsel for the review petitioner could not point out any error of law or fact apparent on face of record which would persuade us to review our well-considered judgment. 13. For all these reasons, we find no merit in this review petition and the same is, accordingly, dismissed.