Parvaiz Ahmad Dar vs State of J&K

Mr. Ali Mohammad Magrey, J. - Petitioner has filed this writ petitioner with the prayer to direct the respondents to appointment him as

Inspector in the Jammu and Kashmir Executive Police on compassionate grounds in terms of SRO 43 from retrospective date and to grant him the

consequential benefits.

Petitioner's father, Abdul Hameed Dar died in harness on 18.09.2009. He held the post Dy. Superintendent J&K Executive Police and on the

relevant date was posted as such in the 1st Battalion Auxiliary Police. The Petitioner possessed Bachelor's Degree in Computer Applications and

was of 26 years age. In the month of October, 2009, the petitioner made an application addressed to the Director General of Police, J&K under

the provisions of SRO 43, seeking his appointment as Inspector in the J&K Executive Police. The application so filed by the petitioner was

processed at different levels starting from the Commandant, Auxiliary Police, 1st Bn., Srinagar and ultimately was recommended by the Director

General of Police, vide communication dated 26.11.2009, to the Financial Commissioner, Home Department for petitioner's appointment as

Inspector in relaxation of Recruitment Rules. The Home Department vide their letter dated 20.01.2010 wrote back that the petitioner be appointed

as Constable under SRO 43. The petitioner, not being satisfied with the offer, approached the Chief Minister with a representation which was

forwarded by him to the Director General of Police with instructions to review the petitioner's case. The Director General, in turn, addressed fresh

communication dated 31.03.2010 to the Financial Commissioner, Home, for considering the petitioner for appointment as Sub Inspector.

However, there was no response from the Home Department.

The case of the petitioner is that since he was not being appointed as Inspector and being desperate for a job, having regard to the death of his

father and financial position of the family, he approached the Home Minister with a representation on 27.07.2011. However, nothing concrete was

done.

The petitioner ultimately approached the Director General of Police with a representation for his appointment in a civil department. Thereupon

the General Administration Department vide Order No. 490-GAD of 2013 dated 22.03.2013 appointed the petitioner as Village Level worker in

the Rural Development Department, District Kulgam.

The petitioner joined against the post and thereafter filed this writ petition on 05.03.2014, seeking the reliefs referred to in the very first

paragraph of this order.

Respondents have filed their response, vehemently resisting the claim of the petitioner. However, they have been set ex-parte by order date

10.08.2015.

I heard Mr. Z. A. Shah, learned senior counsel for the petitioner and considered the matter.

The learned senior counsel invited the attention of this court to annexure 'M' to the writ petition, which is a collection of Government orders

whereby numerous persons have been appointed on compassionate grounds under the provisions of SRO 43 either in the Police Department or in

the Excise and Taxation Department of the state on higher posts ranging from Sub-Inspectors to Inspectors. Learned counsel submitted that the

Government in the matter of appointing persons on compassionate grounds has been making pick and choose and, thereby, discriminating between

similarly placed citizens. According to the learned senior counsel this is a sheer abuse of the power conferred on the Government and its

functionaries, and that such arbitrary approach brazenly demonstrated by the authorities at the helm needs to be stopped and the discrimination

meted out to the petitioner deserves to be set right. Learned counsel submitted that acceptance of a class IV post-(Village Level Worker)-by the

petitioner, in the circumstances he and his family was placed, cannot be equated with acquiescence on his part or abandonment by him of his right

to seek appointment on the appropriate post. Learned counsel submitted that the action on the part of the Government in the Home Department to

have offered a Class IV post to the petitioner and their inaction on his request to appoint him on the post of Sub-Inspector or Inspector in the

Executive Police, as had been duly recommended by the Director General of Police, are totally violative of the rights of the petitioner guaranteed to

him under Articles 14 and 16 of the Constitution as well as the provisions of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994.

The learned counsel also cited and relied upon a decision of the Coordinate Bench of this Court in Mudasir Hamid v. State of J&K, SWP No.

1192 of 2007, decided on 28.10.2011 [2012 (4) JKJ 656 [HC]] in support of his argument that the petitioner is entitled to be directed to be

appointed on a suitable post commensurate with his qualification. The learned senior counsel also produced certain Government orders stated to

be supporting petitioner's claim.

Annexure 'M' comprises of a bundle of ten Government orders placed on record by the petitioner to demonstrate the discriminatory approach

and uneven handling by the Government of similarly placed persons in the matter of employment under the rules providing for appointments on

compassionate grounds. Let these orders be noticed ad seriatim:

i) By Government Order No. Home-471 (P) of 2007 dated 01.10.2007, sanction has been accorded to the relaxation of qualification/recruitment

rules of Police Department in favour of one Sardar Rishi Singh brother of late Dy. SP, Shelly Singh of Jammu, for his appointment as Inspector in

the police Department under SRO 43 of 1994;

ii) By Government Order No. 579 (P) of 2007, dated 06.12.2007, Sanction in pursuance of Sub-rule (2) of rule 3 of SRO 43 of 1994 has been

accorded to the appointment of one Shri Mohammad Yasser Parray son of late Inspector Ghulam Nabi Parray of Anantnag, Kashmir, as Sub-

Inspector;

iii) By Government Order No. 127-GAD of 2008, dated 03.01.2008, sanction has been accorded to the appointment of one Shri Rajan Vikrant

son of late Dy. SP, Davinder Sharma of Jammu as Sub-Inspector in relaxation of proviso to sub-rule (1) of Rule 3 of SRO 43 of 1994;

iv) By Government Order No. Home-384 (P) of 2008, dated 30.05.2008, sanction has been accorded, in pursuance of Sub-rule (2) of Rule 3

and sub-rule (1) of Rule 3 of SRO 43, to the appointment of one Shri Vikrant Singh Kotwal son of Late Inspector, Shri Kotwal of Jammu, as

Sub-Inspector in relaxation of height by 31/2

v) By Government Order No. 331 (P) of 2009, dated 22.04.2009, sanction has been accorded pursuant to Sub-rule (2) of Rule 3 and proviso to

sub-rule (i) of Rule 3 of SRO 43 of 1994 to the appointment of Shri Sunil Khajuria son of late Krishan Lal Khajuria, ASI, as Sub Inspector in

J&K Police in relaxation of rules;

vi) By Government Order No .513 (P) of 2009, dated 12.06.2009, sanction has been accorded to the appointment of one Shri Suhail Mushtaq

son of Late Inspector, Mushtaq Ahmad of Naseembagh, Srinagar as Sub-Inspector in J&K Police in relaxation of proviso to sub-rule (1) of rule 3

of SRO 43 of 1984;

vii) By Government Order No. 860-GAD of 2011, dated 29.07.2011, sanction has been accorded to the appointment of one Shri Mobashar

Altaf son of Late Sheikh Mohd. Altaf, Ex SP Telecom of Ganderbal, as Sub-Inspector under compassionate appointment rules, 1994;

viii) Similarly, in terms of Government Order No. 85-GAD of 2014 dated 24.01.2014 passed in compliance with the directions of this Court

dated 07.12.2009 passed in SWP No. 1655/2008 titled Imtiyaz Ahmad Malik v. State and Ors, 2010 (1) JKJ 142 [HC] read with order

dated 29.04.2013 passed in contempt petition no. 141/2010 and in supersession of Government Order No. 1285-GAD of 2008, dated

30.09.2008, sanction has been accorded to the appointment of one Shri Imtiyaz Ahmad Malik of Anantnag, Kashmir, as Sub-Inspector

(Executive) in the Police Department in relaxation of rules under Rule 7 of SRO 43 of 1994;

ix) By Government Order No. 100-GAD of 2007, dated 25.01.2007, sanction has been accorded to the appointment of one Shri Tariq Ahmad

Darsaroo of Anantnag, Kashmir, as Sub-Inspector in the Excise Department against available post under direct quota on compassionate grounds

in terms of SRO 43 of 1994;

x) By Government Order No. 1391-GAD of 2006, dated 16.11.2006, passed in supersession of Order No. DC/PD/ Adm-II/08 of 2006, dated

04.01.2006 issued by Development Commissioner (Power), sanction was accorded to the appointment of one Shri Iftiqar Ahmed son of late

Rashid Ahmed Resident of Leh as Draftsman/Mechanical in PWD against available vacancy in terms of SRO 43 of 1994.

Photocopies of three Government orders produced by the learned senior counsel during the course of arguments depict as under:

i) By Government Order No. 139-GAD of 2015, dated 05.02.2015, one Ms. Sandaya Bakshi, who had been appointed on the post of Library

Assistant in District cadre Jammu in terms of SRO 349 of 1998 on the basis of her being an outstanding sports person, was later appointed on the

post of teacher;

ii) By Government Order No. 298-Home of 2015, dated 28.07.2015, sanction was accorded to appointment of one Mr. Zahid Ahmad Kana son

of Late HC Manzoor Ahmad of Baramulla as Sub-Inspector in J&K Police in terms of Sub-rule (2) of Rule 3 of SRO 43 of 1994; and

iii) By Government Order No. 281-Home of 2015, dated 22.07.2015, sanction was accorded to appointment of one Shri Hemanshu Mahajan

son of Ex-SP (M) resident of Jammu as Prosecuting Officer in J&K Police in relaxation of rules under SRO 43 of 1994.

From a perusal of the aforesaid orders, it transpires that the respondents have made appointments of, inter alia, wards of deceased Police

Officers, who have died in harness, on the higher posts of Inspector or Sub-Inspector or equivalent posts, like Prosecuting Officer, and, that too,

in relaxation of anything required by the rules of recruitment, including qualification, mandatory height, age etc. Going by the aforesaid orders, Mr.

Shah is right in saying that the petitioner has been singled out and meted out hostile discrimination inasmuch as he was offered only the post of

Constable. This, despite the fact that the petitioner was duly qualified, fell within the prescribed age limit and had applied for his appointment under

the relevant rules within one year of his father's death. Not only that, his case was duly recommended twice by none other than the Director

General of Police.

Rule 3 of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994, promulgated under SRO 43 dated 2nd February, 1994,

provides

as under:

Appointment under these Rules:

(1) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or

post under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of

non-gazetted service or Class IV post having qualification as prescribed under the relevant Recruitment Rules.

Provided that the applicant is eligible and qualified for such post or acquires such eligibility and qualification within a period of one year from the

date of death of the deceased person specified in rule 2;

Provided further that no application for compassionate appointment under these rules shall be entertained after the expiry of one year from the date

of death of the deceased person.

(2) Nothing in sub-rule (1) shall derogate from the powers of the Government in General Administration Department to appoint at its discretion a

candidate to a higher post in the non-gazetted service if he/she is a family member of a deceased Government employee or civilian killed in the

militancy related actions.

A perusal of the aforesaid Rule makes it axiomatic that an eligible family member of a person specified in rule 2, i.e., a Government employee

who dies in harness other than due to militancy related action, may be appointed against a vacancy in the lowest rank of non-gazetted service.

In the instant case, the petitioner despite being qualified, falling within the age limit and having applied within just one month from the date of

death of the deceased employee, has been appointed on a Class IV post. In identical circumstances, this Court in Mudasir Hamid v. State of

J&K and Ors. (supra) held and directed the respondents therein as under:

... Respondents are duty bound to comply with their own statutory rules. Respondents cannot approbate and re-approbate as the statutory rules

do not permit them to do the same. Petitioner's claim, in the facts and circumstances of this case, was to be considered for his appointment on a

post in the lowest rank of non-gazetted service. Respondents have failed to discharge their statutory obligation by not according such consideration

to the claim of the petitioner. The plea of the learned counsel for the respondents that petitioner having accepted appointment cannot stake claim

for seeking consideration for being appointed on a higher post, would be against the mandate of Rule 3 of the Rules of 1994. The family of the

petitioner was deprived of source of sustenance and petitioner by accepting the appointment on a Class IV post has only enabled the family to

sustain itself through lawful means. It cannot be said that petitioner by accepting appointment on Class IV, has no right to seek consideration which

is provided by the statutory rules for being appointed on a higher post. For the above stated reasons, this petition is disposed of in the following

manner:

By issuance of writ of Mandamus, respondents are directed to reconsider the claim of the petitioner for his appointment on compassionate grounds

strictly in accordance with mandate contained in the rules 3 and 4 of the J&K (Compassionate Appointment) Rules, 1994. Respondents to

consider the claim and take a decision thereon within a period of eight weeks from the date copy of this order is served upon them.

This petition is squarely covered by the aforesaid decision of this Court.

In light of the above, this petition is disposed of with a direction to the respondents to reconsider the case of the petitioner strictly in

accordance with the rules 3, 4 and 7 of the J&K (compassionate Appointment) Rules, 1994 for his appointment on an appropriate post in the

Executive Police commensurate with his qualifications and on the analogy of the persons appointed by the Government by the orders mentioned

here in above. The needful shall be done within a period of two months from the date of this judgment.

No order as to costs.