Jammu & Kashmir High Court - Srinagar Bench
Saqib Ayub Khan vs Through: Mr. Altaf Haqani on 12 October, 2020
Bench: Ali Mohammad Magrey, Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA no. 93/2019
CM no. 1551/2020
Reserved on: 29.09.2020
Pronounced on: 12.10.2020
Saqib Ayub Khan ...Appellant(s)
Through: Mr. Altaf Haqani, Advocate
(Through video call from residence)
v.
State of J&K and ors. ...Respondent(s)
Through: Mr. B. A. Dar, Sr. AAG
(Through video call from residence)
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Hon'ble Mr. Justice Sanjay Dhar, Judge
Judgment
Per Magrey J.
1. This appeal has been preferred against the judgment dated 05.04.2019 passed by the learned Writ Court dismissing the appellant's writ petition, SWP No. 581/2018, seeking compassionate appointment against the higher post in the non-gazetted service of the Power Development Department, having completed / acquired his Bachelor of Technology (Electrical and Renewable Energy Engineering) during the pendency of his application, in terms of sub- rule (2) of Rule 3 of the Jammu and Kashmir Compassionate Appointment Rules, 1994, and on the analogy of similarly placed persons specified in the writ petition. The relevant facts are noted hereunder.
2. The appellant's mother, Mst. Musharaf Ayub Khan, who was holding the post of Master at Government Middle School (Boys), 2 Numchibal, Zone Rainawari, Srinagar, died in harness on 14.12.2013. At that time, the appellant was studying in 2 nd year of B. Tech course. He, claiming to be the sole dependent family member of the deceased government employee, made an application dated 16.01.2014 to the Zonal Education Officer, for his compassionate appointment under the Jammu and Kashmir Compassionate Appointment Rules, 1994, promulgated vide SRO 43 of 1994 (hereinafter SRO 43). The appellant's application was processed but it remained pending consideration with the Government/competent authority while the appellant completed his B. Tech. in Electrical and Renewable Energy. He brought this fact to the notice of the concerned respondent(s) vide his application dated 13.10.2016 and requested that his case for compassionate appointment may be considered in the related Department commensurate with his acquired qualification.
3. On the appellant having made the above application dated 13.10.2016, the Director, School Education, Kashmir, wrote communication no. Estt.-IIl/NG/A/741/SRO-43/35 dated 09.01.2017 to the Commissioner/Secretary to Government, Education Department, in this behalf. It appears that the matter was referred to the General Administration Department (GAD). The GAD, on its part, sent OM no.GDC-124/CM/2017-SRO dated 18.04.2017 to the Commissioner/Secretary to Government, Power Development Department, to identify a post commensurate to the qualification of the appellant. In response to the OM, the Under Secretary to Government, Power Development Department, wrote back to GAD identifying one vacant post of Junior Engineer (Electric) in M&RE Wing, Kashmir.
4. However, despite identification of the vacant post of Junior Engineer (Electric) in M&RE Wing, Kashmir, nothing was done. Meanwhile, the GAD issued Government order no.1628-GAD of 2017 3 dated 22-12-2017 according sanction to the temporary appointment of one Mr. Ishan Jasrotia S/o Randhir Singh Jasrotia and Late Smt. Naresh Kumari R/o W. No 16, Shiv Nagar, Kathua, as Junior Engineer (Mechanical) in the Pay Band of Rs.9300-34800 with Grade Pay of Rs.4200/- in Mechanical Engineer Department of the Public Works (R&B) Department, in terms of sub-rule (2) of Rule 3 of SRO 43 of 1994.
5. There is a specific averment made by the appellant in his writ petition that his case was processed alongwith the aforesaid Mr. Ishan Jasrotia, but his appointment was not ordered alongwith him and on the same analogy, because, according to him, in the meantime, he had met the Chief Secretary of the State in public hearing on 25.07.2017, bringing to his notice his long pending case for compassionate appointment and had requested him for a direction for expeditious disposal of his case. There is, in fact, OM no.PS/CS/08/2017/1148-R dated 26.07.2017 written in this regard by Under Secretary with Chief Secretary to the Commissioner/Secretary to the Government, General Administration Department.
6. Be that as it may, about three months after the appointment of aforesaid Mr. Ishan Jasrotia, the Under Secretary to the Government, School Education Department, addressed communication no. Edu- I/54/2017 dated 08.03.2018 to the Director, School Education, to the following effect:
"Subject: Compassionate appointment case of Mr. Saqib Ayub Khan S/o Mohd Ayub Khan R/o Kalashpora, Srinagar, under SRO-43 of 1994.
Sir, Kindly refer your letter no. Estt.-IIl/NG/A/741/SRO- 43/35 dated 09.01.2017 regarding the above cited subject. The case of the applicant was taken up with the General 4 Administration Department for considering against a higher post commensurate to his qualification. However, the General Administration Department has returned the case with the advice to appoint the applicant against a lowest non-gazetted category post in the Department in terms of Rule 4 of SRO-43 of 1994.
As such, you are advised to appoint the applicant against a lowest non-gazetted category post, in district cadre Srinagar, under SRO-43 of 1994".
7. The appellant challenged the aforesaid communication in the writ petition before the learned Writ Court on the grounds taken therein.
8. The GAD in its reply to the writ petition, at para no.1, under the caption 'Brief facts/objections', while admitting the facts, stated that the appellant was not possessing the B. Tech. qualification at the time of death of his mother; whereas Mr. Ishan Jasrotia at the time of his mother's death was in possession of B. Tech Degree and that there is this difference between Mr. Ishan Jasrotia that he was possessing B. Tech degree at the time of death of his mother, whereas the appellant completed his B. Tech degree 2½ years after the death of his mother. Furthermore, referring to sub-rules (1) and (2) of Rule 3 of SRO 43 of 1994, the GAD in para 3 of the reply stated that the conjoint reading of the sub-rules revealed that an applicant who possesses the qualification at the time of death of the deceased or acquires qualification within five years from the date of death of the deceased can be considered for appointment against a Class IV or a lower non-gazetted post only, and that an applicant can be considered for appointment against higher non-gazetted category post only when he is in possession of the qualification at the time of death of the deceased as prescribed for the post in terms of the relevant recruitment rules of the service. It is averred that since the appellant had completed B. Tech. within five 5 years from the date of death of deceased, so he was considered for appointment against a lower non-gazetted post; instead of the post of Junior Engineer which is a higher non-gazetted post. In para 5 of the reply, it was averred that, accordingly, it was decided by the competent authority to return the case to the School Education Department with the advice to appoint the applicant (appellant herein) against a lower non-gazetted category post in the Department in terms of Rule 2 of SRO 43 of 1994 which authorizes the HoD/Administrative Department to appoint the persons under these Rules.
9. The learned Writ Court in its impugned judgment dated 05.04.2019 has held as under:
"4. In terms of the Compassionate Appointment Rules, the eligibility of the petitioner is to be seen from the date of death of the petitioner's mother. Petitioner at the time of the death of his mother was still undergoing B. Tech course, which he continued to pursue. Since the qualification of Junior Engineer was acquired by him after the death of his mother, therefore, while considering for the compassionate appointment under SRO 43, his qualification as an Engineer cannot be taken into consideration. Eligibility and qualification are determining factor for appointment on compassionate basis, therefore, approval was given for the appointment of petitioner to the lowest rank of non-gazetted service as he had not acquired the requisite qualification within a period of six months from the date of death of the deceased."
The learned Writ Court, in its judgment, has also referred to the Division Bench judgment of the Court in Tariq Ahmad v. State, 2001 SLJ 385, and has reproduced para 8 of the said judgment which itself quotes a passage from an earlier Division Bench decision dated 25.06.2001 in LPA no.178/2000, Gulzar Ahmad Mir v. State of J&K.
10. There is no dispute that the subject-matter is governed by the provisions of SRO 43, which has undergone certain amendments over 6 the period of time, especially in Rule 3 thereof. This Court is of the view that the outcome of this Letters Patent Appeal hinges on the determination of application of sub-rule (2) of Rule 3 of SRO 43 substituted vide SRO 177 dated 20.06.2014. Before coming to sub-rule (2), it may be mentioned that Rule 3, as it originally existed, is quoted in para 5 of the judgment in Tariq Ahmad v. State (supra). It then read 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 lower 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 appellant is eligible and qualified or acquires eligibility, the qualification within a period of six months 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 of a deceased Government employee or a civilian killed in the militancy related action."
It is thus seen that in terms of Rule 3 (1) as it then existed, an eligible family member of a person specified in Rule 2 of SRO 43, having qualification above matriculation could be appointed against a vacancy in the lower rank of a non-gazetted service, and if he had read upto matriculation, he could be appointed only to a class IV post. In terms of the proviso to sub-rule (1), such family member could acquire the eligibility and qualification within a period of six months. Obviously, the period of six months would count from the date of death of the deceased employee. It is further seen that sub-rule (2) of Rule 3 related 7 to the family member of a Government employee or civilian killed in militancy related action and it conferred a discretion on the Government in the GAD to appoint such family member of a Government employee or civilian to a higher post in the non-gazetted service, unfettered by the provision of sub-rule (1) of Rule 3.
11. Rule 3 of SRO 43 was, thereafter, amended, rather substituted, vide notification SRO 201 dated 04.06.2007. The substituted Rule 3 read 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;
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 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 civilian killed in militancy related actions."
The substituted provision of Rule 3, thus, brought about a substantial change in favour of family member of a deceased employee dying in harness, inasmuch the application for compassionate appointment 8 could be made and entertained within one year from the date of death of the deceased employee and the family member, seeking the appointment, could acquire the eligibility and qualification within the same one year from the date of death of the deceased. However, the discretion vested in the Government in the General Administration Department in terms of sub-rule (2) vis-a-vis a dependent family member of a Government employee or civilian killed in militancy related action was preserved and retained.
12. Thereafter, Rule 3 of the SRO 43 was again amended vide notification SRO 199 dated 04.07.2008 whereby the following paragraph was inserted under sub-rule (2) of Rule 3:
"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."
The above inserted provision, however, did not relate to the family member of a Government employee dying in harness simpliciter.
13. Finally, by notification SRO 177 dated 20.06.2014, inter alia, Rule 3 of the aforesaid Rules was further amended substituting the words 'one year' occurring in the first proviso to sub-rule (1) and the 9 proviso to sub-rule (3) by the words 'five years'. Apart from that, sub- rule (2) of Rule 3 was substituted by the following:
"(2) Nothing in sub-rule (1) shall derogate from the powers of the Government in General Administration Department to appoint, at its discretion, a family member of a person specified in rule 2 to a higher post in the non-
gazetted service for which he / she is eligible and qualified in terms of the recruitment rules prescribed for that post."
Further, by the very same notification, in sub-rule (3), for the words 'militancy related action as specified', the words 'militancy related action, or a civilian who dies as a result of law and order situation and is not found directly involved in the actual violence, or due to enemy action on the Line of Actual Control / International Border within the State of Jammu and Kashmir as specified' were substituted.
14. In terms of the notification, further, after sub-rule (3), the following Explanation was added:
"Explanation: All cases pending on the date of SRO Notification 177 of 2014 dated 20.06.2014 shall be decided in accordance with the said notification provided that the candidate has applied within one year from the date of death of the deceased person."
15. So, a bare perusal of the aforesaid provision of Rule 3 makes it manifest that Sub-rule (1) thereof permits appointment of an eligible family member of a person specified in Rule 2 of SRO 43 against a vacancy in the lowest rank of non-gazetted service or Class IV post subject to the condition that he possesses the qualification prescribed for such posts under the relevant Recruitment Rules. If such a family member is not eligible or qualified either for the lowest non-gazetted post or Class IV post, the first proviso thereunder earlier gave him an opportunity to acquire the eligibility and qualification for "such" post within one year from the date of death of the deceased employee. The 10 word "such" used in the first proviso is a pronoun/determiner, which means "of the type previously mentioned". The previously mentioned posts in the instant case are lowest non-gazetted post or Class IV post specified in sub-rule (1) of Rule 3. So, the word such refers and relates to lowest non-gazetted post or Class IV post mentioned in sub-rule (1) of Rule 3. As per the first proviso to sub-rule (1), therefore, the opportunity to acquire the eligibility and qualification envisaged by first proviso to sub-rule (1) of Rule 3 relates to and refers back to the lowest non-gazetted post or Class IV post specified in sub-rule (1) of Rule 3. In that context, the second proviso to sub-rule (1) provided that an application for compassionate appointment could be made within the same one year. Thus, the two provisos were complementary to each other, meant to provide an opportunity to the specified family member to acquire eligibility and qualification "within one year from the date of death of the deceased" and till then one could defer making application for compassionate appointment. Obviously, therefore, the opportunity envisaged by the first proviso to sub-rule (1) of Rule 3 relates only to acquiring the eligibility and qualification of the lowest non-gazetted post or the Class IV post mentioned in sub-rule (1) of Rule 3. The first proviso does not permit enhancing the qualification after the death of the deceased employee for claiming the highest or higher non-gazetted post; instead the spirit and object of the rule is to reach out a benefit to a dependent of a deceased employee to enable him to acquire eligibility for the lowest minimum post. It is a piece of social, subordinate legislation for the benefit of the members of the society who are put to penury by the sudden death in harness of the Government employee, of course, with some liberal approach as envisaged by the Rules.
1116. In terms of notification SRO 177 dated 20,06.2014, the period of one year mentioned in the first proviso, that is for acquiring the eligibility and qualification for the very same posts as mentioned in sub-rule (1), i.e., "lowest non-gazetted post or Class IV post" has been increased to five years. But, at the same time, the application has, of necessity, to be made within one year from the date of death of the deceased. That is, the period for making the application for compassionate appointment has not been increased. So the question is what does this amendment seek to mitigate or meet - application has to be made within one year, but the eligibility and qualification can be acquired within 05 years? This Court is of the view that there cannot be a situation visualized except that this amendment is aimed at affording an opportunity to such a family member who as on the date of death of the deceased employee is neither eligible nor possesses the qualification prescribed for the "lowest non-gazetted post or Class IV post", to acquire the eligibility and qualification within upto a maximum of five years. Naturally, till then he cannot be appointed. Obviously, it is understandable that if at the time of making such application, the applicant does not possess the qualification prescribed either for the "lowest non-gazetted post or Class IV post" he can mention in his such application made within one year that he would be acquiring the qualification prescribed either for the lowest non- gazetted post or Class IV post within the prescribed five years. Seemingly, he has the choice to opt for completion of the prescribed qualification for the lowest non-gazetted post within the said period of five years. However, if on the date of making such application for compassionate appointment he is eligible and qualified for the lowest non-gazetted, he cannot seek time to increase / enhance his qualification. This is so because there is no provision in the Rules providing for giving an opportunity to such a family member to 12 enhance or increase the qualification over and above the qualification he possesses on the date of making the application for compassionate appointment, to enable him to claim appointment on a higher non- gazetted post later on.
17. Now, if on the date such a family member, who makes an application for compassionate appointment within one year from the date of death of the deceased, possesses a higher qualification commensurate with and prescribed for the highest non-gazetted post and he makes an application for appointment on such higher post, the Government in the GAD, in terms of sub-rule (2) as substituted by SRO 177 of 20.06.2014, has been conferred the discretion to appoint such person on the highest non-gazetted post. The first proviso to sub- rule (1), envisaging an opportunity of upto a maximum 05 years to a dependent family member, who is ineligible or does not possess the qualification for the lowest non-gazetted post or Class IV post, to acquire the eligibility and qualification for such lowest non-gazetted post or the Class IV post, is not applicable in the case covered by sub- rule (2) of Rule 3 of SRO 43, because that would amount to providing an opportunity to enhance or increase the qualification which does not seem to be the object of the Rules. It may, at the cost of repetition, be reiterated here that application for compassionate appointment has of necessity to be made within one year from the date of death of the deceased.
18. Furthermore, sub-rule (2) substituted vide SRO 177 says that nothing in sub-rule (1) shall derogate from the powers of the Government in General Administration Department to appoint, at its discretion, a family member of a person specified in rule 2 of SRO 43 to a higher post in the non-gazetted service for which he / she is eligible and qualified in terms of the recruitment rules prescribed for 13 that post. The words used are "for which he/she is eligible and qualified in terms of the recruitment rules prescribed for that post". These words, especially the copula 'is', which is the third person singular present of 'be', refer to the present, i.e., the date of making of the application for compassionate appointment. That means such an applicant can be appointed on the highest non-gazetted post if he/she is eligible and qualified in terms of the recruitment rules as on the date of making of the application, which of necessity has to be made within one year from the date of death of the deceased. The sub-rule (2) of Rule 3 is independent of the first proviso to sub-rule (1). It deals with a peculiar situation and safeguards the interests of a dependent of a deceased employee dying in harness who on the date of making of the application possesses the prescribed eligibility and qualification for the highest non-gazetted post; it, by no standards envisages enhancing qualification for the highest non-gazetted post.
19. It is true that in the instant case the GAD had asked the Power Development Department to identify a vacancy of the highest non- gazetted post in the Department and that the appellant's application in that regard was duly processed, but that fact does not confer any right on him, especially when such a course was outside the scope of the rules. The instance of Mr. Ishan Jasrotia cited by the appellant to press his claim is not attracted herein, he having been qualified on the date of death of his mother or on the date he made his application for compassionate appointment.
20. We, however, respectfully, disagree with the learned Writ Court that in terms of the Compassionate Appointment Rules, the eligibility has to be seen from the date of death of the Government employee or that such a family has to acquire the requisite qualification within a period of six months from the date of death of the deceased. As seen 14 above, the eligibility and qualification in terms of first proviso to sub- rule (1) of Rule 3 to conform to the prescribed eligibility and qualification for the lowest non-gazetted post or Class IV post can be acquired within five years from the date of death of the deceased employee and in terms of the second proviso to sub-rule (1), application for compassionate appointment can be made within one year from the date of death of the deceased employee. As a necessary corollary, such an applicant is granted the opportunity to acquire his eligibility and qualification not only for the lowest non-gazetted post or Class IV post, but also for the highest non-gazetted post even till filing of the application for compassionate appointment as well. In other words, the second proviso to sub-rule (1) of Rule 3 is relatable also to sub-rule (2) of Rule 3 of SRO 43.
21. In light of what has been discussed above, it is held that sub-rule (2) of Rule 3 of SRO 43 does not envisage permission or opportunity to a dependent family member of a Government employee who dies in harness to enhance his qualification beyond the date of his application to be made within one year from the date of death of the deceased employee so as to claim appointment on compassionate basis against the highest or higher non-gazetted post; and that the first proviso to sub-rule (1) of Rule 3 is not applicable to sub-rule (2) of Rule 3 of SRO 43.
22. This appeal, accordingly, being without any merit, deserves to be dismissed and is so hereby dismissed, but for our own reasons recorded hereinabove. Dismissal of the appeal, however, will not impact the right of the appellant to appointment in terms of the decision of the GAD as conveyed by the Under Secretary to the Government, School Education Department, vide communication no. Edu-I/54/2017 dated 08.03.2018, to the Director, School Education, to 15 appoint the applicant against a lowest non-gazetted category post, in district cadre Srinagar, under SRO-43 of 1994, impugned by the appellant in the writ petition. This also disposes of the connected CMs, vacating the interim directions, if any, passed and subsisting in this appeal.
23. No order as to costs.
24. The original official record files produced by Mr. B. A. Dar, learned Sr. AAG, are returned to him.
(Sanjay Dhar) (Ali Mohammad Magrey)
Judge Judge
Srinagar,
12.10.2020
Syed Ayaz Hussain, Secy.
Whether approved for reporting : Yes
SYED AYAZ HUSSAIN
2020.10.12 12:24
I attest to the accuracy and
integrity of this document