Jammu & Kashmir High Court - Srinagar Bench
Mohd. Ayoub Mir vs State Of J&K & Ors on 30 March, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 258 of 2008 CMP No. 458 of 2008 Mohd. Ayoub Mir Petitioners State of J&K & ors Respondents !Mr. M. Ashraf, Advocate ^Mr. M. A. Thakur, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 30/03/2011 :J U D G M E N T:
1. The father of the petitioner was working as Field Assistant in the respondent department. He was killed by the unidentified gunmen. Petitioner, being eligible for being appointed in the Government service, accordingly, applied in accordance with the Rules called the Jammu and Kashmir (Compassionate Appointment) Rules of 1994 (for short Rules of 1994). Vide Agriculture Order no. 191-Estt of 2000 dated July 25, 2000, petitioner was appointed against the class-IV post of Chowkidar in the pay scale of Rs. 2550-3200 plus usual allowances by respondent no. 2.
2. As the petitioner at the time of his appointment was a science graduate, he represented to the authorities that in terms of Rules of 1994 he was entitled to be considered for being appointed against a class-III post. The petitioner pursued with his claim before the authorities and even cited the examples of some persons who, in similar circumstances, were appointed in the category of Class-III. When the petitioners efforts did not bear any fruits he was constrained to file this writ petition.
3. This writ petition is pending on the files of this Court from the year 2008. Neither objections nor reply affidavit has been filed.
4. Heard learned counsel for the parties. Considered the matter.
5. Learned counsel for the petitioner invited attention of the Court to Rule 3 of the Rules of 1994 and submitted that the petitioner was to be considered for being appointed against a vacancy lowest in the rank of non-gazetted service as he was graduate at the point of time his claim was considered for such appointment. Learned counsel also submitted that there are scores of persons who have been given benefit of Rule 3 of the Rules of 1994 and one such candidate is private respondent. Learned counsel, accordingly, submitted that the respondents be commanded to consider the petitioners claim for being appointed against a vacancy lowest in the rank of non-gazetted service being graduate.
6. Mr. Thakur, learned counsel for the respondents submitted that the petitioner has already accepted the order of appointment which was issued in the year 2000, he is, thus, precluded from raising the issue. Learned counsel submitted that as the petitioner, by accepting the appointment order and by joining on the class-IV post, has accepted the decision of the respondents, so, he cannot be permitted to turn round at this stage and project a different claim. Learned counsel prayed for dismissal of the writ petition.
7. The Rules of 1994 are notified to give effect to the policy decision of the Government to provide succor to the family who is deprived of his bread earner in the circumstances mentioned in the said Rules.
8. Rule 3 of the Rules of 1994 is reproduced as under:
3.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 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.
(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 a civilian killed in the militancy related actions.
9. The State and its authorities, in view of the mandate contained in Rule 3 (supra), have imposed statutory duty upon themselves to consider the claim for appointment on compassionate grounds of a person having qualification above matric against a vacancy in the lowest rank of non-gazetted service or to Class-IV post if a person is below matric. True it is that no claim can be made for such appointment against a particular post by a person when he stakes claim for compassionate appointment. In the present case, however, the respondents have imposed a duty under the Statute on themselves in terms of Rule 3 (supra) to consider the claim of aforesaid candidate, having qualification above matric, against a vacancy in the lowest rank of non- gazetted service. The petitioner was above matric at the time he sought consideration for compassionate appointment. The respondents were duty bound to follow their own Rule, inasmuch as the claim of the petitioner for his appointment under compassionate grounds was to be considered against a vacancy in the lowest rank of non-gazetted service.
10. In terms of Rules of 1994, a class of persons is created and protection is afforded to such a class of persons. Rule 3 of the Rules of 1994 has further categorized the class of persons created in terms of Rules of 1994. One class is that who is possessed of the academic qualification above matriculation and another class is that who is possessed of the academic qualification upto matric. In view of the Constitutional mandate contained in Article 14, respondents are duty bound to provide equal protection of laws and equality before law.
11. The respondents have failed to comply with the Constitutional mandate as contained in Article 14 of the Constitution of India as also the statutory requirements as provided in Rule 3 of the Rules of 1994 inasmuch as they have not considered the claim of the petitioner for being appointed against a vacancy in the lowest rank of non-gazetted service notwithstanding this fact that the petitioner was possessed of academic qualification above matric. The respondents are duty bound to follow the mandate contained in the Constitution and Rule 3 of the Rules of 1994.
12. For the abovestated reasons, the petition is disposed of in the following manner By issuance of writ of Mandamus, respondents are directed to consider the claim of the petitioner for being appointed against a vacancy in the lowest rank of non-gazetted service in accordance with the mandate contained in Rule 3 of the Jammu and Kashmir (Compassionate Appointment) Rules of 1994 and in view of the observations made in this order. The respondents to initiate and conclude the process within a period of three months from the date copy of this order is served on them.
Disposed of accordingly (Muzaffar Hussain Attar) Judge Srinagar 30-03-2011