Azhar Mirza vs State and Others

Mansoor Ahmad Mir, J.—The controversy involved in the writ petition on hand is as to whether the Respondents can be directed to

consider the case of the Petitioner for appointment on compassionate grounds in terms of SRO 43 of 1994. In order to determine the same, it is

necessary to give a brief resume of the case, the womb of which has given rise to the institution of the writ petition on hand.

It is submitted in the writ petition that one Shri Gulzar Hussain Sarwar, father of the Petitioner who was on deputation with the Jammu &

Kashmir State Board of School Education, was murdered on 5th of June, 1994, at Jammu. Consequently, the Petitioner filed an application for

appointment under the Jammu & Kashmir (Compassionate Appointment) Rules, 1994, after a lapse of three and a half years and after completing

his diploma training course in Electronics from Regional Polytechnic Kunjwani Jammu. The application of the Petitioner was not considered which

constrained the Petitioner to file SWP No. 2199/1999. After considering that writ petition, this Court vide order dated 29.12.1999, directed the

Respondents to consider the case of the Petitioner for compassionate appointment. Respondents failed to comply with the direction

aforementioned which forced the Petitioner to file contempt petition (Cont. No. 162/2001). The Respondents appeared in the matter and

disclosed in their statement of facts that they have considered the case of the Petitioner but Petitioner was not found entitled for compassionate

appointment in terms of SRO 43 of 1994, therefore, his case came to be rejected vide order dated 03.08.2001, impugned in the writ petition on

hand. Hence it is this rejection order which is questioned by the Petitioner through medium of the present writ petition, on manifold grounds.

Respondent No. 1 has filed the reply and has opposed the averments made in the writ petition. The Petitioner has also filed the rejoinder

wherein he has refuted the averments made in the reply.

I have heard learned Counsel for the parties. It is useful to mention here that on the one hand the Petitioner has averred in the writ petition that

his father died in 1994 and applied for compassionate appointment immediately after the death of his father but on which date he had applied for

compassionate appointment he has not bothered to say so, and on the other hand he has contended in paragraph 2 of his rejoinder affidavit that his

father died in June, 1998 and completed his diploma in Electronics and Communication in the year 1997 and applied for compassionate

appointment on 04.07.1998. It is not understandable as to which of the version of the Petitioner is true. Therefore, I choose myself to see from the

record as to what the actual position is. It is observed that the father of the Petitioner died while in service in 1994 and the Petitioner applied for

compassionate appointment as per his own showing in the year 1998. What I gather from pleadings of the Petitioner is that same are confusing.

Not only that the Petitioner seeks appointment on compassionate against the post of his own choice. Be that as it may, the core issue which arises

for consideration in this writ petition is as to whether the consideration order passed by the Respondent - GAD is legally sound or not.

To have the answer, it become obligatory to see what is the main aim and valid object of the Government behind the compassionate

appointment is that they must have realized the realities of situation of an employee who dies in harness, besides that, their family has a right to live

and sustain themselves and they should not suffer at all. Therefore, under such precarious situation, it was deemed appropriate by the Government

to provide immediate succour to the family by employing one of the dependants of the deceased who may be found eligible for such employment.

That Is why the Government have come up with the SRO 43 of 1994.

Reverting back to the case, it is not denying that the Petitioner has applied for compassionate appointment after attaining the qualification that

too after three years of the death of his father.

It becomes imperative to extract Rule 3 of Compassionate Appointment Rules, 1994, which may be noticed:

Provided that the applicant is eligible and qualified or acquires eligibility and qualification within a period of six months from the death of the

deceased person specified in Rule 2.

From a plain reading of the proviso aforementioned, it is quite clear that a person who is eligible at the time of the death of the bread earner as also

the one who attains eligibility within a period of six months from the death of the deceased is entitled to consideration. That being the rule position,

then how come the Petitioner can claim appointment to the post of Junior Engineer when the provision of the SRO 43 of 1994 does not allow so?

More so, the mother of the Petitioner (wife of the deceased), is a Government employee, therefore, appointment on compassionate grounds is not

permissible. It is also well settled that appointment on compassionate grounds is given only on humanitarian consideration, more particularly to save

the dependants from social evils and to overcome the set back/sufferings, as such, cannot be claimed as a matter of right.

Law is no more res integra that seeker of compassionate appointment as per the provisions of the Jammu & Kashmir (Compassionate

Appointment) Rules, 1994, has no indefeasible right to claim an appointment to a particular post of his choice. So much so, a candidate seeking

appointment on compassionate grounds cannot seek parity and cannot claim as a matter of right that he should be appointed against a higher post

for the reason that some other similarly situated persons came to be appointed. It is also well settled that delay in filing the application for seeking

appointment on compassionate grounds on belated stage disentitles a person to get such appointment.

It will be appropriate and profitable to quote relevant paragraphs of certain . judgments of the Apex Court and this Court wherein it has been

observed.

In State of J & K v. Sajad Ahmad Mir 2006 AIR SCW 3708 : 2010 (5) JKJ SC 234, the Apex Court has held:

We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought

'compassion', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule.

Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and

compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be

made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread

earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of bread earner, the family survived

and substantial period is over, there is no necessity to say 'good bye' to normal rule of appointment and to show favour to one at the cost of

interests of several others ignoring the mandate of Article 14 of the Constitution.

The Apex Court in the case Haryana State Electricity Board Vs. Krishna Devi, , has held:

It is well settled that employment on compassionate ground is given only on pure humanitarian consideration and no appointment can be claimed as

a matter of right. The main object was to provide immediate financial help to the family of the deceased employee. It is also well settled that

employment under compassionate ground cannot be made in absence of rules or instructions issued by the Government or any public authority.

This Court in case Abid Bashir Tayubi v. State of J & K SLJ 2003(1) 115 : 2003 (4) JKJ HC-654 has held, which reads as under:

In the light of the object of the Rules and the settled proposition of law, the claim of the Petitioner for appointment against higher post on the

basis of higher qualifications, or any other grounds, whatsoever, is not sustainable as the object is only to alleviate the financial distress by offering

sustenance.

The claim for parity in appointments made in identical circumstances to the higher post is also not sustainable for the reason that if the State has

done any favour to some person against the mandate of the Rules and the law laid down by the Supreme Court, the State cannot be directed to

treat other persons alike against the concept of settled law. In such circumstances, it cannot be said to be a case of positive discrimination in terms

of Article 14 of the Constitution of India. Before seeking parity, it is to be made out whether the order, with which parity is sought, is legal and

valid in law. If such an order is passed de hors the rules, no parity can be claimed and thus it is not a case of discrimination.

In the aforementioned backdrop, Respondents have rightly passed the consideration order, which in my opinion, warrants no interference.

Accordingly, writ petition is dismissed along with CMP. Interim direction, if any, shall stand vacated. However, there shall be no order as to costs.