Mohd. Muzammal Khan vs State Of J&K And Others

Petitioner’s father was working in the Education Department and died in harness in the year 2006. Petitioner applied for compassionate

appointment under SRO 43 of 1994 against any available post of Class-III in terms of the provision of aforesaid SRO in District Poonch so as to

enable him to provide sustenance to his family. After consideration of his application, an appointment order was issued in his favour on 26.03.2010 by

Chief Education Officer, Poonch as Laboratory Bearer i.e Class-IV post in Higher Secondary School, Chhatral .

Petitioner immediately, thereafter approached respondent No. 3 by submitting a representation stating that he is entitled to any post of Class-III,

therefore, he should be considered and appointed to the post of Class-III, which would be commensurate with his qualification and also in terms of

compassionate appointment Rules. He again sought consideration by submitting representations to the Director School Education on 26.06.2012,

14.11.2013 as well as on 12.08.2014. Since his representations were not considered for appointment as Laboratory Assistant, therefore aggrieved of

the same, petitioner has approached this Court.

Reliance is placed by him on the order dated 17.05.2003 passed by Director School Education in compliance to the judgment of this Court dated

12.06.2002 pursuant to which one, Riaz Ahmad was appointed as Laboratory Assistant in modification of his earlier order. It is also submitted that the

petitioner’s case is similarly situated person and yet he has been denied the benefits of his appointment in Class-III category, as such, he seeks

parity with similarly situated person.

Respondents in their objections have objected the claim of the petitioner firstly on the ground of delay and latches. It is their specific objection that

he was granted the benefit of SRO 43 of 1994 and appointed on compassionate basis in Class-IV Category in Government Higher Secondary School,

Chhatral, District Poonch, therefore, once having accepted the appointment and joined the Class-IV post without any reservation demure or protest, he

cannot turn around and seeks his appointment on the higher post as per his wishes and desires.

Respondents have also objected the claim of the petitioner on the ground that petitioner was appointed vide order dated 26.03.2010 and he had

approached this Court and filed this petition on 27.11.2014, as such, petitioner filed this petition after more than four years of delay which has not been

explained by petitioner.

Learned counsel for the respondents have also submitted that since his right to be considered for appointment on compassionate basis which

concluded on his joining, there is no further basis for consideration on compassionate ground. The compassionate appointment was only basis to tide

away of the immediate financial distress on the death of his father and that has been done, therefore, he cannot now challenge the same.

Learned counsel for the petitioner on the other hand has placed order of this Court for consideration in case Tariq Ahmad Ganai V. State of J&K

and others, reported as 2001 SLJ, 385, wherein it was held as under:

“7. This view has been reiterated by the Supreme Court in the case “State of Rajasthan Vs. Umro Singh†reported in 1994(6) SCC 560

holding that:-

“Admittedly the respondent’s father died in harness while working as Sub-Inspector CID (Special Branch) on 16.01.1988. The respondent filed

an application on 08.04.1988 for his appointment on compassionate ground as sub-inspector or LDC according to the availability of vacancy. On a

consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right

to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever

arise. Otherwise, it would be a case of “endless compassionâ€. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of

selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that

direction be issued under proviso the Rule 5 of the Rules which has no application to the facts of this case…… Therefore, once the right has

consummated as we indicated earlier, any further or second consideration for a higher post on the ground of compassion would not arise…â€​

It was further held:

“…10. Mr. Qadri, has also submitted that the appellant has accepted the post without any protest, and therefore, has waived his right to approach

the court for seeking direction for his appointment as ASI. Mr. Beigh, has in rebuttal submitted that the case of the appellant as ASI and what

happened thereafter is not known. There is substance in the plea of Mr. Qadri, that having accepted the post of Head Constable the appellant has

waived his right and cannot turn back to seek the relief prayed for. Waiver of right, has been explained by the Supreme Court in case “M.P. Sugar

Mills Vs. State of U.P.â€​ reported in AIR 1979 SC 621 holding that:-

“Waiver means abandonment of a right and it may be either express or implied from conduct but its basic requirement is that it must be an

intentional act with knowledge.â€​

The appellant has abandoned right by conduct on accepting the appointment and this has waived his right.â€​

The aforesaid judgment squarely applies to the facts of the case, as the petitioner after having accepted the post has waived his right by conduct,

resultantly, this petition is without any merit and is dismissed along with connected IA.