Ali Mohammad Dar vs Shaleen Kabra & Ors

1) The petitioner got appointed on compassionate grounds as a Lab. Bearer vide order No.210-DSEK of 2011 dated 01.02.2011. In the year 2015, he

preferred a writ petition bearing SWP No.466/2015 alleging therein that in terms of Jammu and Kashmir (Compassionate Appointment) Rules, 1994,

the petitioner ought to have been considered for appointment in the lowest rank of non-gazetted cadre instead of appointing him as a Lab. Bearer. The

said writ petition came to be disposed of vide judgment dated 31.07.2015 holding that at the time of petitioner’s appointment (in 2011), the

respondents had failed to follow the mandate of statutory Rules and the petitioner ought to have been considered for appointment against a vacancy in

the lower rung of non-gazetted service. Accordingly, the Writ Court directed the respondents to consider and appoint the petitioner against a vacancy

in the lower rank of non-gazetted service.

2) The present contempt petition has been preferred for non-compliance of the aforementioned judgment and order, against which no appeal was

preferred by the State.

3) A coordinate Bench of this Court vide order dated 9th of April, 2018, noticed the fact that the judgment and order had not been appealed against

and, therefore, same had attained finality, which was required to be complied with. Time was, accordingly, granted to the respondents for compliance.

4) The direction issued by the Writ Court vide judgment and order dated 31.07.2015, on the face of it, runs contrary to the law laid down by the Apex

Court in State of Rajasthan vs. Umrao Singh, (1994) 6 SCC 560. The Apex Court has clearly held that once compassionate appointment is given and

accepted, the right to such appointment stood exhausted and that a second consideration for a higher post was not warranted.

5) Statement of facts has been filed, in which a stand is taken that pursuant to the directions of this Court ordering consideration of the petitioners’

case, case of the petitioner was, in fact, considered and rejected vide order dated 7th of June, 2016. The allegations of disobedience are, thus, denied.

6) On a perusal of the order of consideration dated 7th of June, 2016, it can be seen that the case of the petitioner has been rejected after

consideration and a detailed order passed in that regard. Moreover, considering the ratio of the judgment of the Apex Court in State of Rajasthan vs.

Umrao Singh, (1994) 6 SCC 560, the petitioner having accepted the appointment as a Lab. Bearer cannot now be permitted to lay a claim for a higher

post in the non-gazetted cadre.

7) Be that as it may, the order of consideration having been passed requires no interference. In my opinion, the present contempt petition has no merit.

The proceedings are, accordingly, closed.