Jammu & Kashmir High Court - Srinagar Bench
Gulzar Ahmad Khan vs State And Ors. on 15 November, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 2350/2015
MP No. 01/2015
Date of decision:15 .11.2017
Gulzar Ahmad Khan Vs. State of J&K & Ors
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For Petitioner(s) : Mr. Nissar Ahmad Bhat, Advocate.
For Respondent(s): Mr. M.A. Wani, Senior AAG.
(i) Whether to be reported in
Press, Journal/Media: Yes/No
(ii) Whether to be reported in
Journal/Digest: Yes/No
1. This is third round of litigation by petitioner. It is the case of petitioner that father of petitioner, who was an employee of the Forest Department, died in harness on 23.08.1977. He was minor at that time; he was engaged by Principal Chief Conservator of Forests in terms of his order dated 23.03.1999 as casual labor on casual basis till formal sanction for appointment of petitioner on compassionate grounds was to be issued by the Govt. After passing of Pre-University Class, he applied under the relevant SRO's in so far as compassionate appointment is concerned. The case of the petitioner for compassionate appointment was referred to the Administrative Department for grant of sanction and Administrative Department after perusing the relevant documents like Death Certificate, Legal Heir Certificate, Qualification Certificate and Date of Birth of the legal heirs of the deceased employee, did not took any decision with regard to the compassionate appointment of the petitioner. Even though the respondents had appointed one Shahida SWP No.2350/2015 Page 1 of 13 Wani as Junior Assistant on compassionate grounds as her father also died in harness.
2. It is further case of petitioner that his case being identical one, but despite that the respondents adopted the discriminatory approach and deprived the petitioner from the appointment on the basis of compassionate grounds. Since the case of the petitioner was pending for the last several years without any results, the petitioner was constrained to approach before this court through the medium of writ petition bearing SWP No.2016/2000. That petition was disposed of with direction to the respondents to consider the case of the petitioner in view of the pleas raised by the petitioner in the said writ petition and in view of the peculiar circumstances of the case, take a decision in the matter within a period of three months. The court further directed that while considering the case of the petitioner, due opportunity of hearing be provided to the petitioner who shall be free to place before the respondents all the grounds which are available to him for consideration of his case. Respondent No.1 instead of considering the case of the petitioner as per the directions of the court, choose to ignore the same and issued Govt. order No. 401-FST of 2001 dated 04.10.2001, whereby respondent No. 1 rejected the claim of the petitioner to be appointed on compassionate grounds. The petitioner being aggrieved of the aforesaid order dated 04.10.2001, challenged the same though the medium of writ petition bearing SWP No.212/2002 before this court. That writ was disposed of and again a direction was passed to respondents to consider the case of the petitioner in view of the pleas raised by the petitioner in the writ petition and in view of the peculiar circumstances of the case, take a decision in the matter within a period of three months. The court further directed that while considering the case of the petitioner, due opportunity of hearing be provided to the petitioner who shall be free to SWP No.2350/2015 Page 2 of 13 place before the respondents all the grounds which are available to him for consideration of his case.
3. Respondent No.4 taking quorum of the aforesaid communication, issued order No. 82 of 2014 dated 04.03.2014, whereby respondent No. 4 after narrating the facts and giving the sequence of events as well as direction passed by this court, rejected the claim of the petitioner. The petitioner has challenged the impugned order on the following grounds;
a. That the petitioner's father was a Forest Guard in the Department who died in harness in the year 1977. At that time, the petitioner was minor, however, in the year 1994, the petitioner applied under the relevant rules for compassionate appointment. The matter remained pending and no orders were passed till 23.03.1999 when the petitioner was engaged as casual labour on casual basis till formal sanction for his appointment on compassionate grounds was to be received from the Govt.
b. That the respondents even though recommended the case of the petitioner for being appointment on compassionate grounds, however, no decision was taken on the said recommendation which compelled the petitioner to approach this court and this court directed the respondents to consider the case of the petitioner for his engagement on compassionate grounds. The respondents instead of considering the case of the petitioner in appropriate manner, rejected the claim being belated one. The petitioner being aggrieved of the said order challenged the same before this court and this court in terms judgment dated 19.12.2007 after making observation in favour of the petitioner, allowed the writ petition and directed the respondents to reconsider the case of the petitioner within three months. The respondents did not choose to consider the case of the petitioner within the stipulated period of time, however, after lapse of more than 7 years, the respondents on the basis of observation made by the Administrative Department rejected the claim of the petitioner in terms of order dated 04.03.2014. the grounds taken in the impugned order while rejecting the claim of the petitioner are the same which were earlier taken and thereafter, the court allowed the writ petition by directing the respondents to reconsider the case of the petitioner. The respondents cannot take the same grounds which were before SWP No.2350/2015 Page 3 of 13 the court and same were nullified in terms of judgment dated 19.12.2007, by the court. In this view of the matter, the impugned order dated 04.03.2014, deserves to be quashed and respondents be directed to appoint the petitioner on compassionate grounds.
c. That in terms of judgment dated 19.12.007, the court observed that the petitioner had filed a writ petition bearing SWP No. 2016/2000 which was heard and disposed of by this court vide order dated 06.07.2001. The court also observed that the ground of delay was available to the respondents even at that time, but the respondents did not raise an issue as such, they are estopped from raising the issue now in the present petition. In view of the observation made by this court, the respondents were supposed to consider the case of the petitioner ignoring the delay, however, the respondents rejected the claim of the petitioner only on this ground and have mentioned that the petitioner had to attain the eligibility and qualification within a period of one year from the date of death of the deceased. In this of the matter, the impugned order dated 04.03.2014 is contrary to the judgment dated 19.12.2007, as such, same deserve to be quashed and the respondents be directed to appoint then petitioner on compassionate grounds as "Forest Guard."
d. That this court in terms of judgment dated 19.12.2007, allowed the writ petition of the petitioner in view of the peculiar circumstances and directed the respondents to reconsider the case of the petitioner in view of plea raised by the petitioner. The respondents were supposed to consider the case of in accordance with the plea's raised as well as observation made by the court in the judgment 19.12.2007 decided the case on the advice made by the Administrative Department to pass the speaking order by rejecting the claim of the petitioner for appointment under SRO-43 of 1994. The order passed by the respondent No. 4 is based on aforesaid Advisor, made by the Administrative Department and the respondent No. 4 has not applied his independent mind to the facts and circumstances of the case. The decision taken by the respondent No. 4 is based on opinion framed by the Administrative Department which vitiates the order dated 03.04.2014, therefore, the impugned order deserves to be quashed.
e. That the impugned order dated 04.03.2014 has been issued on malafide and extraneous considerations only to deprive the petitioner from his legitimate right. Therefore, the SWP No.2350/2015 Page 4 of 13 impugned order being based on non-application of mind on the part of the respondent No. 4, as such, same deserves to be quashed.
f. That the respondents in identical case Shahida Wani granted relaxation of 14 years in lower age and in another case of one AneesGowhar granted relaxation of 18 years. However, in the instant case even though the respondents were debarred from taking the said ground did not accorded consideration after granting relaxation to the petitioner. The impugned action on the part of the respondents is discriminatory, therefore, same deserves to be quashed and they be directed to appoint the petitioner on compassionate grounds.
g. That the petitioner was engaged as casual labor till formal sanction for his appointment on compassionate grounds is received from the Govt. The condition precedent of the appointment of the petitioner as casual labour is only that he has to be appointed on compassionate grounds. However, the respondents did not choose to consider the case of the petitioner and the petitioner is presently discharging his duties as casual labour in the respondent department. The petitioner is living a miserable life and has a huge family to sustain therefore, the respondents deserves to be directed to appoint the petitioner on regular basis. The petitioner is discharging his services as casual labour right from 1999 besides being entitled for compassionate appointment he otherwise has to be regularized in the respondent department. In this vies of the matter the impugned order dated 04.03.2014 be quashed and respondents be directed to appoint the petitioner in the respondent department on the post of Forest Guard.
4. On the basis of case set up, the petitioner prays for the following reliefs:
I. Issue writ of certiorari or any other appropriate writ, order of direction the Forest Order No. 82 of 2014 dated 04.03.2014 be quashed.
II. Issue writ of Mandamus or any other appropriate writ, or direction the respondents be directed to appoint the petitioner in terms of relevant SRO on compassionate grounds. III. Issue writ of Mandamus, or any other appropriate writ, order or direction the respondents be directed to appoint the petitioner w.e.f 1994. And they be also dealt in accordance with SWP No.2350/2015 Page 5 of 13 law for violating the judgement 19.12.2007 passed by this Hon'ble Court.
5. Other side has filed objections stating that case of petitioner is not covered under Jammu and Kashmir Compassionate Appointment Rules; that the order impugned is legal and in accordance with law and the petitioner cannot claim compassionate appointment as a matter of right. That in absence of petitioner satisfying the requirement of rules, the petitioner, cannot claim appointment on compassionate ground; the petitioner's father died on 22/23-08-1977 and in the year 1995, the petitioner represented for his appointment on compassionate grounds. The petitioner as such, approached the respondents after a long time since his father expired and after expiry of considerable time, the petitioner has no locus standi to claim appointment on compassionate grounds. The writ petition as such, merits dismissal. It is also contended that public employment is considered to be a natural wealth. In terms of the constitutional scheme, employment cannot be given on the basis of descent. When such an exception is carried out, the exception is to be strictly complied with; the claim for compassionate appointment is traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. In absence of special requirement of eligibility as prescribed in the rules, the petitioner cannot claim appointment on compassionate grounds; in the present case, the petitioner at the time of his father's death was only 4 year 7 months and 19 days of age. The objective sought to be achieved by grant of compassionate appointed is not available in the present case inasmuch as with the passage of time, the petitioner has been in a position to tide over the sudden crisis caused due to the untimely death of his father. In case the petitioner is offered an appointment on compassionate grounds, same would amount to violation of constitutional mandate which provides for equal opportunity in the matter of public employment.
SWP No.2350/2015 Page 6 of 136. I have considered the rival contentions and perused the order of rejection dated 04.03.2014, which reads as under:
"Office of Chief Conservator of forests, Kashmir Subject: Service Writ petition No. 212/02 title Gulzar Ahmad Khan versus State and others.
Reference: PCCF J&K's communication No. PCCF/Estt/NG/SRO-43/360/3730 dated 04.12.2013 Forest Order NO. 82 of 2014 Dated: March 04 2014.
Whereas, one Shri Gulzar Ahmad Khan S/o Shahbaz Khan R/o Lawaypora Bandipora filed service Writ petition No. 212/2002 before the Hon'ble high Court whereby the petitioner challenged the Government Order No. 401-FST of 2001 dated 04.10.2001 envisaging that the claim was belated, as such, the petitioner was not entitled to compassionate appointment under rules:
Whereas, as per records the Father of petitioner namely Shri Shahbaz Khan, who was working as Forest Guard in Bandipora Division, died in harness on 22/23-08.1977; Whereas, in the year 1995, the petitioner who was 04 years, 07 months and 19 days old at the time of death of his father represented for his appointment on compassionate grounds. The case of the petitioner was referred to the Prl. CCF under CCFK's communication No. 544 CCFK Estt dated 01.03.1996 for accord of sanction to the appointment of Shri Gulzar Ahmad Khan (petitioner) on compassionate grounds in terms of SRO 122, 283 against the post of Forest Guard available under direct Recruitment Quota.
Whereas, the case of the petitioner was referred to the Administrative Department (Forest) by the O/o PCCF J&K for consideration. The case remained under correspondence and in the year 1999, the applicant was engaged as casual labour vide Order issued by the Pr. CCF under No. PCCF/NG/SRO-43/420-21 dated 23.03.1999 till formal sanction of his appointment was received from the Government.
Whereas, the applicant Shri Gulzar Ahmad Khan approached the Hon'ble High Court through the medium of Service Writ petition No. 2016/2000 and the Hon'ble Court issued the following directions:-SWP No.2350/2015 Page 7 of 13
"Considering the matter in the totality of circumstances, this writ petition is disposed of with the directions to the respondents no. 1 to take a decision within a period of two months which period shall being from the date a copy of this order is served by the petitioner on the said respondent. While considering the plight of the petitioner, the recommendation made in his favour shall also be taken into account:
Whereas, acting on the directions of the Hon'ble High Court, the Administrative Department vide Government Order No. 401- FST of 2001 dated 04.10.2001 considered the case of the applicant and rejected his claim on the grounds that the General Administration Department had not agreed to consider such a case in relaxation of rules. In the said consideration order, it was held:
"a. The case was examined and it has been observed that the case does not fall within the ambit of the rules governing the subject. The aim of the compassionate appointment rules is to provide so timely relief to the bereaved family. It cannot be protonated and cannot replace the normal channel of selection to the Government Service. Besides a long time has elapsed since the father of the petitioner expired;
b. The number of such cases were referred to General Administration Department for relaxation of rules but the General Administration Department has not agreed to the proposal;"
Whereas, the petitioner again approached the Hon'ble High Court through the medium of Service Writ petition No. 212/2002. The Hon'ble Court issued a detailed order in the writ petition on 19.12.2007, the operative portion whereof reads as under:-
"In view of this fact and in view of the peculiar circumstances of the case i.e. the petitioner could not apply for appointment as he was minor at the time his father died, the case of the petitioner needs reconsideration by the respondents, as such, petition is allowed with the direction to the respondents to re-consider the case of the petitioner in view of the pleas raised by the petitioner in the present petition and in view of the peculiar circumstances of the case and take a decision in the matter within a period of three months from the date this order is served on the respondents. While considering the case of the petitioner due opportunity of hearing be provided to the petitioner who shall be free to place before the respondents all the grounds which are available to him for consideration for his case."
Whereas, in light of the Hon'ble High Court decision dated 19.12.2007, the matter was referred to the Prl. Chief Conservator SWP No.2350/2015 Page 8 of 13 of Forests J&K under this office communication No. 252/Com.Apptt/CCF (K) Admn/2008/3042 dated 30.12.2008 wherefrom the matter was taken up with the Administrative Department under communication No.PCCF/NG/Estt./SRO- 43/74-75 dated 19.01.2009. The Administrative Department in response thereto vide communication No. FST/NG/12/2001-1 dated 11.02.2010 desired to serve a notice to the concerned calling upon him to be heard in person and provided an opportunity to place all the grounds which are available with him for consideration of his case. The Administrative Department also desired that a speaking order in accordance with rule position and merits of the case be issued under intimation to the said Department.
Whereas, in reference to the directions issued by the Administrative Department, the DFO Bandipora Forest Division was asked to call the concerned and provide him opportunity to place all the grounds which were available with him and furnish a comprehensive report to this office through CF Srinagar Circle for onward submission to the Administrative Department;
Whereas, the DFO Bandipora Division and Conservator of Forests Srinagar Circle vide their communication No. 1352-53/E dated: 18-02-2012 & No. CF/SGR/LO/2011856 dated 03.03.2012 respectively, furnished detailed reports in the matter;
Whereas, the Petitioner also was provided opportunity to place all the grounds available with him. The petitioner attended this Office and was given patient hearing and the documents produced by him vide his application dated 22.03.2012 were submitted to the PCCF J&K under this office letter No. CCF(K)/Admn/2012/704-08 dated 22.05.2012. Under even number and date, it was intimated to the PCCF J&K that the petitioner had challenged the consideration order passed by the Administrative Department in the earlier Writ (SWP No. 2016/2000) filed by the petitioner and it was held that consideration to the claim of the petitioner in the present writ has to be accorded by the said Department as was provided in terms of Hon'ble High Court decision dated 19.12.2007 Whereas, the petitioner lodged Complaint No. 41841 before the Hon'ble Chief Minister's Grievance Cell and a detailed reply was submitted to the PCCF J&K vide this Office letter No. CCF(K)/PS/Comp/475 dated 30.08.2013.
SWP No.2350/2015 Page 9 of 13Whereas, the PCCF J&K vide Communication No. PCCF/NG/SRO-43/360/2651-52 dated 18-09-2013 requested the Administrative Department to accord consideration in the matter;
Whereas, the Administrative Department vide communication No. FST/NG/12/2001-I dated 21.11.2013 conveyed as under:-
"..... the instant case has been re-examined in the Department in terms of Jammu and Kashmir (Compassionate Appointment) Rules, 1994 notified vide SRO-43 of 1994 dated 22.02.1994 and found that the case is not covered under rules."
Whereas, the PCCF vide communication No. PCCF/Estt/NG/SRO-43/360/3730 dated 04.12.2013 forwarded the Administrative Department's communication dated 21.11.2013 tothis office with the directions to issue consideration order in the matter;
Now, therefore, consideration is accorded to the claim of the petitioner Shri Gulzar Ahmad Khan S/o Shahbaz Khan R/o LawayporaBandipra in compliance to the orders of the Hon'ble High Court read with directions issued by the Administrative Department and the PCCF J&K referred to here-in-above and it is held that his claim for appointment on compassionate grounds in terms of SRO-43 of 1994 dated 22.02.1994 cannot be accepted on the following grounds:-
i. That the case does not fall within the ambit of Jammu and Kashmir (Compassionate Appointment)Rules, 1994 notified vide SRO-43 of 1994 dated 22.02.1994 as in terms of Rule-3 of the said SRO, the petitioner had to attain the eligibility and qualification within a period of one year from the date of death of the deceased; ii. That the aim of compassionate appointment rules is to provide timely relief to the bereaved family, it cannot be perotuated and cannot replace the normal channelof selection to the Government service;
iii. A long time has elapsed since the father of the petitioner has expired and after expiry of considerable time, the petitioner has no locus standi to claim appointment on compassionate grounds.
SD/ Chief conservator of Forests Kashmir"
4.3.2014 SWP No.2350/2015 Page 10 of 13
7. A bare perusal of this rejection order, it is evident that authority after giving sequences of events of case, has rejected the claims of petitioner on the main grounds that long time has elapsed since the father of the petitioner has expired and after expiry of considerable time, the petitioner has no locus standi to claim appointment on compassionate grounds. Secondly vide SRO-43 of 1994 dated 22.02.1994 as in terms of Rule-3 of the said SRO, the petitioner had to attain the eligibility and qualification within a period of one year from the date of death of the deceased.
8. Both the grounds legally and factually, not tenable. Because authority while passing the impugned order did not go through the whole order of High court dated 19.12.2007 passed in Service Writ petition No. 212/2002 titled Gulzar Ahmad Khan versus State and others. Authority while passing impugned order has refereed only last para. Whereas in second last para, the High court vide order dated 19.12.2007 hase held as under;-
"Heard. I have considered the matter.
The only ground taken in the order impugned as also in the objection to dis-allow the claim of the petitioner is inordinate delay on the part of the petitioner to apply for appointment. The petitioner's father died in the year 1977 while as he applied for the appointment in the year 1997. The petitioner's case is that he could not apply as he was minor and that immediately after attaining the majority, he applied for the job. As noticed above, the petitioner filed petition SWP No. 2016/2000 which was heard and disposed of by this Court vide order dated 06.07.2001. The grounds of delay was available to the respondents even at that time but the respondents did not raise the issue as such, I find they are estopped from raising the issue now in the present petition.
In view of this fact and in view of the peculiar circumstances of the case i.e. petitioner could not apply for appointment as he was minor at the time his father dies, the case of the petitioner needs reconsideration by the respondents, as such, petition is allowed with the direction to the respondents to re-consider the case of the petitioner in view of pleas raised by the petitioner in present petition and in view of the peculiar SWP No.2350/2015 Page 11 of 13 circumstances of the case and take a decision in the matter within a period of three months from the date this order is served on the respondents. While considering the case of the petitioner, due opportunity of hearing be provided to the petitioner who shall be free to place before the respondents all the grounds which are available to him for consideration of his case.
Order accordingly."
9. So first ground of rejection of claim of petitioner is contrary to finding of this court dated 19.12.2007 passed in Service Writ petition No. 212/2002 titled Gulzar Ahmad Khan versus State and others. This court has categorically held that plea of delay was available to the respondents even at the time of first writ petition (SWP No. 2016/2000) filed by the petitioner but the respondents did not raise the issue as such, they are estopped from raising the issue now in the present petition. So this clearly shows non application of mind by authority while passing impugned order, thereby rejecting the claims of petitioner. Second reason shown that petitioner had to attain the eligibility and qualification within a period of one year from the date of death of the deceased, is also not legally tenable. Because it is admitted fact that when father of petitioner died on 23.08.19777 he was minor. In objections filed by respondents, it has clearly been stated that the petitioner at the time of his father's death was only 4 year 7 months and 19 days of age. So question of attaining eligibility would not arise within one year from the date of death.
10. The authority (respondent No.4) was definitely knowing that the petitioner was minor i.e. 4 year 7 months and 19 at the time of death of his father, then how he can attain eligibility for compassionate appointment under Jammu and Kashmir Compassionate Appointment Rules, within one year.
SWP No.2350/2015 Page 12 of 1311. In view of above, order no. 82 of 2014 dated 04.03.2014 is quashed. The respondents are directed to re-consider the claim of petitioner as per direction of High court passed on 19.12.2007 in Service Writ petition No. 212/2002 titled Gulzar Ahmad Khan Vs. State and others. The whole exercise shall be completed within six weeks from the date of receipt of order. Take notice that respondents shall complete this exercise within time, otherwise it shall be taken seriously.
12. Nisar Ahmed IFS, then Chief conservative of Forests, has deliberately misinterpreted order passed by this court on 19.12.2007 in Service Writ petition No. 212/02 titled Gulzar Ahmad Khan Vs. State and others, so he is burdened personally with costs of Rs.25,000/- on account of wastage of time of this court and costs of litigation. Out of this costs, Rs.10, 000/- shall be paid to petitioner as costs of litigation and rest of money shall be deposited in Advocate Welfare funds. He shall deposit the costs within two months from the date of order, otherwise Registrar Judicial shall forward a copy of this order to Director Accounts for recovery of costs from his pay or if he has been retired then from his pension.
( Sanjay Kumar Gupta ) Judge Srinagar 15.11.2017 SWP No.2350/2015 Page 13 of 13