Jammu & Kashmir High Court - Srinagar Bench
Mudasir Ahmad Kumar vs State Of Jk And Others. on 21 September, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No. 04
Suppl. List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No. 146/2017
MP No.01/2017
Date of judgment: 21.09.2017
Mudasir Ahmad Kumar v. State of JK and others.
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the petitioner(s) : Mr Mir Majid Bashir, Advocate.
For the respondent(s) : Mr M. A. Beigh, AAG.
i) Whether approved for reporting in Yes.
Law journals etc.:
ii) Whether approved for publication
in press: Yes.
Badar Durrez Ahmed, CJ (Oral)
01. This appeal has been preferred against the judgment dated 30.04.2015 delivered by a learned Single Judge of this Court in SWP No.689/2015. The writ petition was filed on the ground that the petitioner's case for compassionate appointment under SRO 43 of 1994 had been wrongly rejected by the respondents on 09.03.2012.
02. The learned Single Judge by virtue of the impugned judgment has rejected the writ petition primarily on two grounds. The first being that the application for compassionate appointment was preferred beyond the time prescribed under Rule 3 of the Jammu & Kashmir (Compassionate Appointment) Rules, 1994 (hereinafter referred to as the said Rules). The second point which was noted and LPA No.146/2017 Page 1 of 10 observed by the learned Single Judge was that compassionate appointments by their very nature are made to enable the family of the deceased employee to tide over the crisis situation. When an application is filed after several years, it is evident that the crisis would have been over. Several decisions of the Supreme Court were relied upon in respect of both the aspects.
03. It was the contention of the learned counsel for the appellant before us that in the case of a minor/ dependant, the period of limitation would start running only from the date the minor attains majority. This was followed up by the statement that the minor (the appellant herein) attained majority on 15.03.2011 and he applied for compassionate appointment within six months. To be precise, he applied before July, 2011. Therefore, according to the learned counsel for the appellant, the case of the appellant who was a minor at the time of death of his father (who died on 27.11.2001) could not have been rejected on the ground of limitation or delay and laches.
04. Before we examine this contention, it would be necessary to set out the facts. The appellant's father was working as a Watchman in the department of Consumer Affairs and Public Distribution, Kashmir, Srinagar. He died on 27.11.2001 when he was still in employment. His widow (Syda Begum) filed an application on 21.07.2003 for her compassionate appointment under the said SRO 43 of 1994 (the said rules). At that point of time, she was asked to furnish certain documents but she failed to do so. Subsequently, she approached the concerned Minister with an application praying that one post of Watchman be kept reserved for her minor son (the petitioner herein) on humanitarian grounds. It appears that the same was referred to the Administrative Department through a communication dated 09.08.2005 from the Directorate of Consumer Affairs and Public Distribution Department, Srinagar. The Administrative Department, by its letter dated 09.05.2005, responded by stating that the minor son (the appellant herein) was not eligible for appointment on compassionate grounds and advised LPA No.146/2017 Page 2 of 10 the widow to submit the requisite documents in order to enable her name to be considered for compassionate appointment. Since she did not respond, the widow was once again requested by letter dated 04.10.2005 to submit the requisite documents. Despite this, the said widow did not submit any documents. The matter rested there.
05. After a gap of five years, the appellant (on attaining majority) submitted an application in 2011 for appointment under the said rules along with certificates of date of birth/ qualification issued by the Headmaster, Government High School, Kanthpora (Lolab) Kupwara. His date of birth was indicated to be 15.03.1993 and he had studied and cleared Class 9 in the said School. The said application of the appellant was rejected on 09.03.2012. Thereafter, the appellant did nothing till 2015, when he filed the writ petition being SWP No.689/2015 wherein the following reliefs were claimed: -
"I) By writ of Mandamus, directing the respondents to appoint the petitioner on compassionate basis under SRO 43 of 1994.
II) By writ of Mandamus, directing the respondents to appoint and engage the petitioner as Class-IV employee on compassionate basis in the respondent department.
III) By writ of Mandamus commanding upon the respondents to appoint and engage the petitioner and give retrospective effect of his appointment w.e.f. the year 2005.
IV) By writ of mandamus, declaring the SRO 99 of 2008 having prospective effect and declare SRO 99 dated 07.04.2008 having not retrospective effect and not applicable in the case of the petitioner.
V) Mandamus, declaring the SRO 43 of 1994 applicable in case of the petitioner.
VI) Any other order or direction, which the Hon'ble Court deems just and proper may also be passed in favour of the petitioner and against the respondents."LPA No.146/2017 Page 3 of 10
06. Rule 3(1) of the said Rules reads as under: -
"3. Appointment under these rules: - (1) Not withstanding 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."
By virtue of SRO 201 dated 04.06.2007, Rule 3(1) of the said Rules was amended 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 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."
07. A plain reading of the above provision clearly indicates that as per the proviso, as it stood in 2001 (when the appellant's father died), the applicant must LPA No.146/2017 Page 4 of 10 be eligible and qualified for such post or should acquire such eligibility and qualification within a period of six months from the date of death of the deceased person specified in Rule 2 of the said Rules. This, in the context of the present case, means that the appellant should have acquired eligibility within six months from the date of death of his father i.e., 27.11.2001. One of the conditions of eligibility is that the applicant should be 18 years of age. Obviously, the appellant did not attain 18 years of age within six months of the date of death of his father which occurred on 27.11.2001. In fact, he attained eligibility only on 15.03.2011 i.e., over 9 years thereafter. The second proviso, which was introduced in 2007, prescribes that no application for compassionate appointment under the said Rules shall be entertained after the expiry of one year from the date of death of the deceased person. Even if we assume that the second proviso would give another period of limitation of one year from 04.06.2007, because the appellant's father had died in 2001-prior to the amendment, that would be of no help to the appellant as the application was, in fact, made much later in 2011. And, in any event the appellant's case is hit by the first proviso. Therefore, the appellant's application was liable to be rejected.
08. It must also be noticed that initially the application for compassionate appointment was made by the appellant's mother but she did not furnish the requisite documents. Secondly, when she moved an application seeking reservation of a post for the appellant till he attained the age of majority, the same was rejected in 2005 and she was once again asked to submit requisite documents for her compassionate appointment. She did not do so even then. As pointed out above, the matter rested there till 2011 when the present appellant filed the application seeking compassionate appointment under the said Rules. As has been pointed out above, the same was rejected by a communication dated 09.03.2012 on the ground that the case was time barred and was not covered under the said Rules.
LPA No.146/2017 Page 5 of 1009. We have gone through the entire judgment of the learned Single Judge and have found ourselves to be in complete agreement with the same. The learned counsel for the appellant has not been able to point out any error in the said decision. In fact, the learned Single Judge has correctly placed reliance on the Supreme Court decision in the case of State of J&K and others v. Sajad Ahmed Mir : (2006) 5 SCC 766. In the said decision, it was observed as under: -
"11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought "compassion", the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye"
to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.
xxxx xxxx xxxx xxxx xxxx
17. In the case on hand, the father of the applicant died in March 1987. The application was made by the applicant after four-and- a-half years in September 1991 which was rejected in March 1996. The writ petition was filed in June 1999 which was dismissed by the learned Single Judge in July 2000. When the Division Bench decided the matter, more than fifteen years had elapsed from the date of the death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family surived in spite of the death of the employee. Moreover, in our opinion, the learned Single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He LPA No.146/2017 Page 6 of 10 took chance of challenging the order in 1999 when there was inter-departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal.
(Underlining added)
10. From the above decision, it is evident that apart from the issue of compliance with the said Rules, the larger issue also needs to be considered. The same being that normally employment in Government or other public sector undertakings should be open to all eligible candidates who can come forward to apply and compete with each other. This is the general rule which should not be departed except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. The Supreme Court clearly observed that once it is proved that in spite of the death of the sole bread earner, the family has survived and a substantial period has elapsed, there would be absolutely no necessity to bid goodbye to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.
11. In the present case, we find that the petitioner's father died in 2001. The application for compassionate appointment was made by the appellant in 2011 and, it is now 2017, that is, almost 16 years later. Therefore, obviously, the family has tided over the period of crisis and there is no case for side-stepping the normal rule of appointment and to show favour to the appellant at the cost of the interests of others by ignoring the mandate of Article 14 of the Constitution.
12. The learned Single Judge also rightly relied upon the decision of the Supreme Court in the case of Haryana State Electricity Board v. Krishna Devi :
(2002) 10 SCC 246, wherein the Supreme Court held as under: -
"5. It is well settled that employment on compassionate ground is given only on pure humanitarian consideration and no appointment can be claimed as a matter of right. The main object was to provide immediate financial help to the family of the LPA No.146/2017 Page 7 of 10 deceased employee. It is also well settled that employment under compassionate ground cannot be made in absence of rules or instructions issued by the Government or any public authority."
13. We may also notice the Supreme Court decision in the case of Commissioner of Public Instructions and others v. K. R. Vishwanath : (2005) 7 SCC 206, where similar provisions pertaining to the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, were considered. In the said decision it was observed as under: -
"9. As was observed in State of Haryana v. Rani Devi [(1996) 5 SCC 308], it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles
14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and
16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi Case it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar [(1994) 2 SCC 718], it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138] that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into LPA No.146/2017 Page 8 of 10 consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
10. In Sushma Gosain v. Union of India [(1989) 4 SCC 468], it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India [1991 Supp (2) SCC 689] and Union of India v. Bhagwan Singh [(1995) 6 SCC 476]. In Director of Education (Secondary) v. Pushpendra Kumar [(1998) 5 SCC 192], it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.
11. In State of U.P. v. Paras Nath [(1998) 2 SCC 412], it was held that the purpose of providing employment to the dependant of a government servant dying-in-harness in preference to LPA No.146/2017 Page 9 of 10 anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointments."
(Underlining added)
14. Ultimately, in the said decision, the Supreme Court held as under:
"13. Above being the position, the Tribunal and the High Court were not justified in directing that the respondent's case be considered for appointment in terms of the Rules without taking note of the limitation prescribed. The judgments are set aside. The appeal is allowed without any order as to costs. Our interference shall not stand in the way of the respondent's case being considered on the basis of existing or future Rules as may be applicable."
(Underlining added)
15. It must be noted that the Supreme Court observed that the High Court was not justified in directing the case of the respondent therein to be considered for appointment in terms of the Rules "without taking note of the limitation prescribed". Consequently, the decision of the High Court in that case was set- aside.
16. This being the position in law, the decision of the learned Single Judge, holding that the appellant's application for compassionate employment was not within the period of limitation, cannot be faulted. The appeal is consequently dismissed. There shall be no order as to costs.
(Ali Mohammad Magrey) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar
21.09.2017
Abdul Qayoom, PS
LPA No.146/2017 Page 10 of 10