Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shafi Sofi vs State Of Jk & Ors. on 24 July, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.269/2016
IA No.01/2016
Date of Order: 24th of July, 2018.
Mohammad Shafi Sofi
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner(s): Mr M. M. Dar, Advocate.
For the Respondent(s): Ms Asifa Padroo, AAG.
01. In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioner has craved the indulgence of this Court in granting him the following relief(s):
i. "Issue a Writ, order or direction in the nature of Certiorari in favour of Petitioner and against the respondents by quashing the impugned Government order bearing No. CCF(K)/Admn/2015/4770-76 dated 27.11.2015 forming Annexure G to this writ petition.
ii. Issue a writ, order or Direction in the nature of Mandamus, commanding the respondents to treat the petitioner in service as Forest Guard/ Junior Assistant which is the post commensurate to the status of the petitioner as per Rule 3 of Compassionate Appointment Rules (SRO 43 of 1994) from the date of his appointment as Orderly 9i.e. 22.12.2011) and pay all consequential benefits to the petitioner of the post of SWP No.269/2016 Page 1 of 9 Forest Guard retrospectively from the date of his appointment and give all other service benefits like Seniority, Promotion & Increment to which the petitioner is entitled.
iii. Issue a Writ, order or Direction in the nature of Mandamus, commanding the respondent No.1 to 3 to examine the issue in question and also peruse the whole record pertaining to the process of the case of petitioner's appointed made against Class IV post vide Annexure B and take appropriate decision therein strictly in compliance of the SRO 43 more particularly adhere to Rule 3 of the said SRO and produce the same record before this Hon'ble court for its kind perusal and appropriate orders."
02. The facts essential in arriving at a decision in the instant petition, briefly and as stated by the petitioner, are that the father of the petitioner, namely, Mohammad Akbar Sofi, who was holding the post of Senior Forester in the respondent Department, died in harness on 7th of March, 2011 due to a massive heart attack, as a result of which, the petitioner, being his son, applied before the respondents for seeking compassionate appointment under SRO 43 of 1994, i.e. the Jammu and Kashmir (Compassionate Appointment) Rules, 1994 (hereinafter referred to as "the Rules of 1994"). This application of the petitioner, after being processed from one office to another, came to be forwarded to the Divisional Forest Officer, Pir Panjal Forest Division, Budgam, who, in terms of communication bearing No. DFO/PP/3602-03/Estt dated 2nd of September, 2011, addressed to the Conservator of Forests, Srinagar Circle, Srinagar/ respondent No.4, recommended the case of the petitioner for considering his appointment against a vacant post of Forest Guard under the Rules of 1994. Thereafter, the respondent No.3, as stated, while ignoring the SWP No.269/2016 Page 2 of 9 recommendations of the Divisional Forest Officer concerned, appointed the petitioner against a Class IV post of Orderly vide order No. 3760 of 2011 dated 22nd of December, 2011. Feeling aggrieved, the petitioner made several representations to the respondents seeking review of his appointment order by adjusting him against the post of Forest Guard/ Junior Assistant, but, fate had it for him that these representations fell in deaf ear and no action in respect thereto was taken by the respondents, which compelled the petitioner to approach this Court through the medium of writ petition, being SWP No.2336/2014. In the said writ petition, this Court, while issuing notice to the other side, directed the respondents to consider the representation of the petitioner forwarded by the Conservator of Forests, Srinagar Circle, to Chief Conservator of Forests, Kashmir. During the pendency of the aforesaid petition, the Chief Conservator of Forests, Kashmir/ respondent No.3 herein, in terms of order issued vide endorsement No. CCF(K)/Admn/2015/4770-76 dated 27th of November, 2015, has considered and rejected the claim of the petitioner. This consideration order dated 27th of November, 2015, has been impugned by the petitioner herein this petition.
03. The respondents have filed their objections, wherein they have stated that the case of the petitioner was considered for compassionate appointment as an Orderly under the Rules of 1994. The petitioner was appointed and posted in the office of Conservator of Forests, Srinagar circle, against an available post of Orderly which was identified by the Conservator of Forests, Srinagar circle and the petitioner joined against the SWP No.269/2016 Page 3 of 9 said post. It is stated that the petitioner accepted the said adjustment at the relevant point of time and now, after a considerable period of time, cannot turn around and seek a direction upon the respondents to appoint him against a higher post. It is further stated that the appointment on compassionate grounds is only made on humanitarian basis and no appointment, in this behalf, can be claimed as a matter of right. The main object of such an appointment is to provide immediate financial help/ succor to the family of the deceased employee.
04. Heard the learned counsel for the parties, perused the record and considered the matter.
05. The moot question that arises for consideration, herein this petition, is whether or not the petitioner can claim his appointment on compassionate grounds in terms of the Rules of 1994 against a higher post as compared to the one granted to him by the respondents.
06. Rule 3 of the Rules of 1994 deals with the procedure for appointment on compassionate grounds and it lays down 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 post 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:SWP No.269/2016 Page 4 of 9
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.] (2) Nothing in sub-rule (1) shall delegate 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.
[Notwithstanding the provisions of the rules contained herein for compassionate appointment, the family members of the civilians killed in militancy related action as specified in clause (iii) of rule 2 shall be entitled to a cash compensation in lieu of appointment in government service of an amount specified by the government which shall be payable in their favour in a manner to be notified by the government:
Provided that if any one among the family members of the deceased civilian fulfills the eligibility criteria prescribed under the aforesaid Rules for appointment into the government service or acquires such eligibility within one year from the date of death of the deceased person, then they shall have the option either to choose the government service or the cash compensation.]"
In the case on hand, the respondents, while being mindful of the fact that the family of the petitioner, whose father died in harness on 7 th of March, 2011, does not suffer from any vagrancy or destitution, appointed the petitioner in the department on a vacant Class-IV post of Orderly on 22nd of December, 2011, strictly in terms of the mandate of the provisions of Rule 3 of the Rules of 1994. The petitioner, at that point in time, accepted his adjustment as an Orderly in the respondent Department and, accordingly, joined his duties on the said post. However, after a lapse of considerable period of time, the petitioner cannot claim that he be appointed on a higher post in the respondent Department rather than the one granted to him. It is well settled that compassionate appointment cannot be claimed as a matter of right. The dependents of an employee, SWP No.269/2016 Page 5 of 9 who dies in harness, do not have any special claim or right of employment, except by way of a concession that may be extended by the employer under the rules to enable the family of the deceased to get over the sudden crisis.
07. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications as laid down by the relevant rules for each post. However, to this general rule, which is to be followed strictly in each and every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure 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, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The object underlying a provision for the grant of compassionate appointment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread- earner which has left the family in penury and without any means of livelihood. However, at the same time, it must be remembered, in this connection, that as against the destitute family of the deceased, there are millions of other families which are equally, if not more destitute. The SWP No.269/2016 Page 6 of 9 exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him; the legitimate expectations; and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.
08. The claim of the petitioner that the post offered to him on compassionate grounds is not commensurate to his status does not have any substance as, in terms of well settled principles of law, if the dependent of a deceased employee finds it below his dignity to accept the post offered on compassionate grounds, he is free not to do so. The post, under compassionate appointment, is not offered to cater to his status, but to see the family through the economic calamity.
09. Law on the subject is no more res integra. The Hon'ble Apex Court of the country, in the case of 'Umesh Kumar Nagpal v. State of Haryana', reported in '(1994) 4 SCC 138', while dealing with a similar issue, at paragraph Nos. 3 to 5, has held as under:
"3. Unmindful of this legal position, some Governments 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 III and IV. That is legally impermissible.
4. 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 course or in posts above Classes III 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 III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify SWP No.269/2016 Page 7 of 9 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 post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as 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 dependent nor the post which he held is relevant. ...........
5. 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 III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity."
10. In case titled 'Haryana State Electricity Board v. Krishna Devi', reported in '(2002) 10 Supreme Court Cases 246', the Supreme Court, while observing that no compassionate appointment can be claimed as a matter of right, held that employment on compassionate grounds is given only on pure humanitarian consideration and that the main object was to provide immediate financial help to the family of the deceased.
11. In 'Sail v. Madhusundan Das's' case, reported in '(2008) 15 SCC', the Supreme Court held this Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It is a concession, not a right and is meant to provide for a minimum relief to the family of the deceased employee, who dies in harness.
SWP No.269/2016 Page 8 of 912. In view of the foregoing analysis, coupled with the enunciations of law, as discussed hereinabove, I am of the considered opinion that the petition of the petitioner is devoid of any merit. It entails dismissal and is, accordingly, dismissed alongwith all connected MP(s).
(Ali Mohammad Magrey) Judge SRINAGAR July 24th, 2018 "TAHIR"
SWP No.269/2016 Page 9 of 9