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Judgment
Muzaffar Hussain Attar, J.—Petitioners claim to be appointed as Stock Assistants in the pay scale of Rs. 3050-4590 in the Sheep
Husbandry Department, Anantnag by Deputy Commissioner, Anantnag in accordance with mandate of rules notified vide SRO 43 of 1994. The
orders were issued on 13th January, 2003. The Deputy Commissioner issued corrigendum No. 323-24/CA/Misc dated: 22.01.2003 wherein and
where under appointment provided to the extent of Stock Assistants mentioned in appointment orders issued under SRO 43 of 1994 by said
authority on 22.01.2003 was directed to be read as Class IV. The petitioners are aggrieved of this action of respondent No. 5 and have
challenged the same in this petition.
This Court passed an order on 05.03.2003 in the writ petition providing that the corrigendum is kept in abeyance till next date. During the
pendency of this writ petition the advertisement notice No. 03 of 2004 was issued in which ten posts of Stock Assistants in open merit category in
district Anantnag in Sheep Husbandry Department were notified for being filed up. The petitioners feeling aggrieved of said advertisement notice
filed the writ No. SWP1352/2004 challenging the said advertisement notice to the extent of respondents may initiate process for selection for only
five posts.
It is for this reason, petitions are being considered and disposed of together. After issuing notice respondents 3 and 4 filed the reply affidavit in
the first writ petition. Order dated: 05.04.2006 reveals that the said reply affidavit of respondents 3 and 4, at their request, was treated as reply
affidavit in the 2nd writ petition as well. Petitioners have filed the rejoinder. Petitioners in writ petition No. 277/2003 filed the CMP No. 837/2008
and sought permission to place on record the order of appointment issued in favour of one Shri Showkat Ahmad Wani.
Heard learned Counsel for the parties. Considered the matter.
Mr. G.A. Lone learned Counsel for the petitioners submitted that petitioners were appointed on compassionate grounds after the posts were
identified in the Sheep Husbandry Department. Learned Counsel further submitted that the impugned corrigendum suffers from lack of application
of mind and no reason is disclosed there under as to why such corrigendum is issued. Learned Counsel for the petitioner submitted that petitioners
who were appointed to posts of Stock Assistants could not be deprived of same without following due procedure of law.
Mr. Allauddin, learned Dy. AG submitted that when a person is appointed on compassionate grounds he is not appointed by adjudging his
suitability, but on the compassion, so the appointee is to be appointed on class IV post and he can not stake any claim for being appointed on
higher post. Learned Counsel for the respondents submitted that Deputy Commissioner has rectified the mistake by issuing corrigendum and no
fault can be found with the corrigendum. Learned Counsel vehemently argued that this Court being court of justice and equity was to consider the
submission of the learned Counsel, even though such pleas are not taken in the pleadings of the respondents and no evidence is produced before
the court along with the reply affidavit/counter affidavit. Learned Counsel while referring to Para 5 and 6 of reply affidavit submitted that the
petitioners are not qualified persons being not trained in diagnosis, treatment of live stock handling of medicines, sheep and goat management and
scientific know how of sheep rearing.
The post available with the Government is admittedly the public property and can be filled up only in accordance with the mandate as provided
under Article 14 and 16 of Constitution. The appointment on compassionate grounds is not made in accordance to the normal rule of making
appointment to public posts. The State being a welfare State is duty bound to follow the mandate contained in Article 14 and 16 of Constitution of
India and to work for the welfare of its people. When a bread earner dies, the family is landed into all kinds of troubles and by death of the bread
earner the family is deprived of the source of sustenance. The State Government in order to fulfill its constitutional obligations towards such section
of the society took a policy decision which got crystallized and reflected in rules called the Jammu and Kashmir (Compassionate Appointment)
Rules, 1994 (for short Rules of 1994). The provision provided for making appointment under Rules of 1994 is an exception to the normal rule of
making appointments to the Government service. The Rules of 1994 provide complete mechanism and procedure for making appointments on
compassionate grounds. Rule 3 of the Rules of 1994 is reproduced as under:
Appointment under these rules:- (I) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure
for recruitment in any service or posts 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 a non-gazetted service having qualification above Matriculation or to a Class IV post if the candidate has read upto
Matric:
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.
The said rule provides that a person who is entitled to be considered for being appointed on compassionate grounds, if above Matric is to be
appointed to the lowest category in non-gazetted service. Person/employee who is Middle pass and has read upto Matric can be considered for
being appointed against Class IV post.
Rule 5 of the Rules of 1994, being relevant for the disposal of this case, is reproduced as under:
Appointment in other cases: (I) Appointment under these rules in respect of a member of the family of a Government employee or a civilian who
has died as result of militancy related action or in respect of a family member of the officer of Armed Force or para military force,. shall be made
by the General Administration Department in accordance with the procedure hereinafter prescribed.
Conjoint reading of the above reproduced rules on plain language thereof manifest itself into a legal position that Deputy Commissioner in
accordance with the mandate of SRO 211 of 1995 of a district is authorized to make appointment on compassionate grounds. Rule 3 mandates
that a person/employee being eligible and possessing academic qualification above Matric is to be appointed in the lowest category of the non-
gazetted service.
Petitioners have been appointed as Stock Assistants in Sheep Husbandry Department. The services of employees of Sheep Husbandry
Department are governed by Rules called the Jammu and Kashmir Sheep Husbandry Department (Subordinate) Service Recruitment Rules, 1987
(for short Rule of 1987). Post of Stock Assistant falls in Class IV category (A) of Schedule 1 (a) appended to Rules of 1987. The requisite
qualification for being appointed as Stock Assistant is Matric with science and 30 per cent of the posts are to be filled up by promotion and 60 per
cent by direct recruitment having Matric with science. The Rule 5 of the Rules of 1987 provide that in order to seek consideration for being
promoted and/or appointed to the post under the rules, a person/employee must be possessed of the qualification provided in the Schedule
appended to the Rules of 1987.
Rule 7 of the Rules of 1987, being relevant for the disposal of this case, is reproduced as under:
Training, departmental Examination
Persons appointed to the service by direct recruitment may be required to undergo such training from time to time during the course of service and
to pass during the period of probation or trial such departmental examination as the Government may prescribe:
Provided that the government may exempt either wholly or partly from such training or departmental examination persons who have passed a
departmental examination or undergone training declared by Government to be equivalent to a departmental examination or training prescribed
under these rules.
The Rule 7 of the Rules of 1987 provide that a person/employee appointed to the service by direct recruitment, if is required to undergo
trainings, and is to be accordingly, deputed to undergo the required training. The proviso appended to Rule 7 of the Rules of 1987, however,
provides for exemption from undergoing to the said rules.
Considering facts of this case on the touch stone of Rules of 1984 and 1987, petitioners who have academic qualification of 10+2 with science
are eligible to be considered for being appointed to the post of Stock Assistant. The question that the candidate to be considered for being
appointed to the post of Stock Assistant has to be possessed of training courses, is completely answered by Rule 7 of the Rules of 1987. After
appointment to service the authorities have to depute the appointees to undergo the training courses. The objection raised by the respondents in
their reply affidavit, as projected Mr. Alla-Ud-Din, learned Deputy Advocate General, is rendered irrelevant in the face of Rule 7 of the Rules of
1987.
The post of Stock Assistant is a post of non-gazetted service and petitioners fulfill the eligibility criteria for being appointed to the said post.
The petitioners have been rightly and properly appointed against the post of Stock Assistant.
Learned Counsel for the respondents submitted that as the appointment on compassionate grounds is a concession given by the Government,
so no person/employee can stake claim to higher post. Learned Counsel also submitted that on the basis of principle of equity, the petitioners are
not entitled to any relief from the court, as a person seeking concession cannot further claim for post of his choice.
True it is, compassionate appointment is being offered by the Government to mitigate the immediate hardship into which the family is landed
because of death of the bread earner and person making such a claim cannot ask to be appointed on the post of his choice. The Government
however, has framed the rules, and appointments on compassionate grounds are being made in accordance with these rules. The Rules of 1994
provide that a person who is above Matriculate when found entitled for being appointed on compassionate grounds is to be appointed in the
lowest category of the non-gazetted service. The petitioners satisfied the requirements of the rules for being appointed not against a Class IV posts
but against the post which were available in the lowest category of non-gazetted service. The statutory rules confer such a right on the petitioners
and posts being available, same could not be denied to them.
The equities in view of the legal position adumbrated hereinabove also tilt in favour of the petitioners as at the time of their appointment on
compassionate grounds were possessed of the requisite eligibilities for being appointed to the post of Stock Assistants.
The corrigendum issued by respondent No. 5 is issued without recording any reason and thus suffers from vice of arbitrariness. The
corrigendum has the effect of denuding the petitioners' rights which had accrued to them by having been appointed to the post of Stock Assistants.
The corrigendum could not be issued without putting the petitioners on notice and without giving them opportunity of being heard.
The arguments raised in respect of factual aspects of the case by learned Counsel for the respondents have not been pleaded in the counter
affidavit/objections in writ petitions. It is settled position in law that all the facts pleaded and evidence in support thereof must also be annexed with
the pleadings. Facts prayed for first time at the time of hearing of the case cannot be considered and looked into excepting in most rare and
exceptional situations which is not position in this case.
The court had kept in abeyance the impugned corrigendum. The post of Stock Assistants were advertised. The action of the respondents is
per se illegal. Any act done by any authority, in violation of court orders, cannot be countenanced in law and such action is not only rendered illegal
but becomes void ab initio. For the above stated reasons, both the writ petitions deserves to be allowed.
Petition is, accordingly, allowed. By issuance of writ of certiorari, the impugned corrigendum No. 323-24/CA/Misc dated 22.01.2003 issued
by respondent No. 5 is quashed. The advertisement notification to the extent of advertising post held by petitioners is also quashed by issuance of
writ of certiorari.
By issuance of writ of mandamus respondents are directed to allow the petitioners to continue on the post of Stock Assistants and give them all
service benefits in accordance with law.