Tariq Ahmad Ganai vs State of J & K

Brief facts of the case are that petitioner's father was killed by the militants while in active service as Assistant Sub inspector of Police post of

Assistant Sub Inspector of police on compassionate ground. His application was proceeded in department of home affairs and proposal to appoint

him on the in relaxation of qualification and mode of recruitment was submitted for consideration of the appointing authority.

However, the competent authority to make such appointment did not accept the proposal which involved relaxation not only of mode of

recruitment but also qualification, but approved his appointment as Head Constable and consequently Govt Order No.323(p) of 1995 dated

17.10.1995 came to be issued which reads:""Sanction is accorded to the appointment of Shri Tariq Ahmed Ganai s/o Late ASI Mohammed

Maqbool Ganai No.2939/NGO R/O Sheerabad, Pattan as Head Constable (Executive) against the available post in the available post in the J and

K Police Organisation on compassionate grounds in terms of SRO 43OF1994dt.22.2.194. After accepting the appointment as Head Constable,

petitioner has come up with the plea that the Government, having appointed M/S I.Brehm Dev Singh 2. Nasir Ahmed 3. Rattan Lal Koul 4. Arun

Jamal and 5. Tan veer Jeelani on the posts of Assistant Sub Inspector and above, on compassionate grounds, he could not be singled out for a

different treatment. But relief claimed by him is not cancellation of orders of appointment of the aforesaid persons but that he also be appointed

Assistant subInspector of police.

Mr. Beigh, the learned advocate appearing for the petitioner submitted that State cannot discriminate in the matter of compassionate

appointments by offering higher posts to some and lower category of posts to others in case of similarly situated persons as this offends the

mandate of Articles 14 and 16 of the Constitution. Since the petitioner has not been given the same treatment which was given to the other similarly

placed persons. The discrimination according to Mr. Beigh can be removed only by appointing the petitioner on the post of Assistant Sub

Inspector of police.

Mr. Qadri, Ld.Sr. AAG, however, contended that it is not a case of discrimination contemplated by the Constitution because under

notification/SRO 43 of 1994 appointment on compassionate grounds can be made only of class III and Class IV. Posts. The lowest post in police

being of a Constable, petitioner was eligible only for the post of Head constable in view of his qualification and he has been appointed Head

constable in relaxation of rules and is thus, not entitled to higher post. Moreover, according to him, having accepted the post, he cannot be

promoted to the next higher grade without following the rules. So the point for consideration is whether rules could be relaxed to make

appointment on posts higher than class III posts. This question came up before their lordships of the Supreme court in Umesh Kumar V/S State of

Haryana 1994 (4) SCC138 where it has been ruled that

......The posts in classes III and IV are the lowest posts in non manual and manual categories and hence they alone can be offered on

compassionate grounds, the object being to relieve the family, of the financial destitution and to help it to get over the emergency. The provision of

employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment

given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, Viz. relief against

destitution. No other posts are expected or required to be given by the public authorities, for the purpose. It must be remembered in this

connection that as against the destitute family of the deceased there are millions of others families which are equally, if not more destitute. The

favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in

the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned...Unmindful of this legal position, some

Government and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial

condition of the family of the deceased and sometimes even in posts above Classes 111 and IV. That is legally impermissible. It is for these

reasons that we have not been in a position to appreciate judgments of some of the High courts which have justified and even directed

compassionate employment either as a matter of courses or in posts above classes 111 and IV. We are also dismayed to find that the decision of

this court in Sushma Gosain V Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate

employment either as a matter of course or in employment in posts above Classes' 111 and IV. In the present case, the High Court has rightly

pointed out that the State Govt's instruction in question did not justify compassionate employment in class II posts. However, it appears from the

judgment that the State Government had made at least one exception, and provided compassionate employment in Class II posts on the specious

ground that the person concerned had technical qualifications such as M.B.B.S, B.E.B. Tech. etc. Such exception, a pointed out above, is illegal,

since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the

penurious condition of the deceased's family Neither the qualifications of his dependant nor the post which he held is relevant.... Referring to the

observations of the High Court of Haryana their lordships further held:

It is obvious from the above observations that the High court endorses the policy of the State Government to make compassionate appointment in

posts equivalent to the posts held by the deceased employees and above Classes 111 and IV. It is unnecessary to reiterate that these observations

are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered he is free not to do so. The

post is riot offered to cater to his status but to sec the family through the economic calamity..."".

Since the post of Assistant Sub Inspector is much higher than Class 111 post, the Govt has no power to appoint him on the said post in view of

the aforesaid legal position.

This brings us to the scope of rule 3 of J and K (Compassionate Appointment) rules 1994 issued vide notification SRO43 dated 22.2.1994.This

rule reads;

Appointment under these rules (1). Not with standing 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 he 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 of acquires eligibility the qualification within a period of six months from the date of death

of the deceased person specified in rule. 2. (2) Nothing in sub rule(l) 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 nongazettes service if he/she is a family member of a deceased

Government employee or a civilian killed in the militancy related action...

Sub rule (1) rule 3 provides, for appointment in the lowest rank of a nonqazetted service which means a Junior Assistant or an equivalent at the

ministerial level, provided the person eligible for such appointment possesses qualification above matriculation. In case of person having less

qualification, he can be appointed only on a class IV post. However, sub rule (2) of rule 3 confers discretion on the Government to appoint a

person on a highest post in the nongazetted service provided he is a family member of the deceased Government employee or a civilian killed in the

militancy related actions. This rule offends Articles 14 and 16 of the Constitution in view of the law laid down in Nagpal's case' 1994 (4) Scel38.

The Govt in such cases cannot appoint a person on a post higher than class III post. In other words, the appointment made on any higher post are

violative of Articles 14 and 16 of the Constitution of India.

Moreover, petitioner having been appointed as Head Constable of police, has no right to claim higher post because the Supreme court in State

of Bihar V/S Samsusz Zoha AIR(1996) Sc 1961, while setting aside the order of the High court,, wherein State was directed to either appoint the

petitioner afresh on class III post or to give him promotion on the said post from the class iv posit, held that:

It is not in dispute that there is no right vested in the candidate for particular appointment on compassionate grounds.....

This apart, the mere fact that respondents passed a particular order in case of another person similarly situated can never be a ground for

issuing a writ in favour of petitioner on the plea of discrimination, in view of the law laid down by the Apex Court in Chandigarh Administration and

another Vs. Jagjit Singh and another, AIR (1995) SC 705, holding that:

..... Generally speaking, the mere fact that the respondentauthority has passed a particular order in the case of another person similarly situated

can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be

legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order

in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal

or unwarranted order cannot be made the basis of issuing a writ compelling the respondentauthority to repeat the illegality or to pass another

unwarranted order. The extraordinary and discretionary power of the High court cannot be exercised for such a purpose. Merely because the

respondentauthority has passed one illegal/ unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality

over again and again. The illegal/ unwarranted action must be corrected, if it can be done according to law, indeed, wherever it is possible, the

court, should direct the appropriate authority to correct such wrong orders in accordance with lawbut even if it cannot be corrected, it is difficult to

see how it can be made a basis for its repetition. By refusing to direct the respondentauthority to repeat the illegality, the court is not condoning the

earlier illegal act/ order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would

be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law......

The petitioner has nowhere explained the facts and circumstances in which the appointments of the persons named by him were made on the

higher post in the police department. However, their appointments being in contravention of the law laid down by the Apex Court, he cannot

complain about discrimination. In view of the above discussion, there is no merit in this petition which is dismissed.