Jammu & Kashmir High Court
Rakesh Kumar vs Ut Of J&K Th on 16 July, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No. 53
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 306/2022
CM Nos. 1156/2022, 1157/2022 & 1628/22023
Rakesh Kumar, Aged 39 years, S/o Late Sh. Jagdish Raj, .....Petitioner(s)
R/o Andheri Gali, Near Janta Flour Mill Gangyal,
Jammu (J&K).
Through: Mr. Sunil Sethi, Sr. Advocate with
Mr. Navyug Sethi, Advocate.
Vs
1. UT of J&K Th. .....
Commissioner/Secretary School Education Deptt., Respondent(s)
Civil Secretariat, Jammu;
2. Secretary to Government,
General Administration Deptt., Civil Sectt., Jammu;
3. J&K Board of School Education, Rehari Jammu Th.
its Secretary;
4. Chairman,
J&K Board of School Education, Rehari Jammu.
Through: Mrs. Monika Kohli, Sr. AAG with
Ms. Priyanka Bhat, Advocate.
Mr. B.S. Bali, Advocate.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER(ORAL)
16.07.2025
1. The petitioner in the instant petition filed under Article 226 of the Constitution of India, has prayed for the following reliefs:-
"(a) An appropriate writ, order or direction in the nature of writ of mandamus declaring notification SRO 120 of 2018 dated 5th March, 2018 issued by the Government in the General Administration Department, whereby married son or married daughter of a deceased employee has been debarred from claiming compassionate appointment under the Jammu & Kashmir Compassionate Appointment Rules, 1094, being totally illegal and ultra-vires the Article 14, 16, 19 and 21 of the Constitution of India. Or in the alternative 2 WP(C) No. 306/2022 An appropriate writ, order or direction in the nature of writ of mandamus declaring the applicability of notification SRO 120 of 2018 dated 5th March, 2018 retrospectively as illegal and ultra-vires the Constitution of India.
b. An appropriate writ, order or direction in the nature of writ of certiorari quashing letter/order no. Adm.-C/2018/A/13 dated 10.03.2020 whereby the claim of the petitioner for his appointment under the J&K Compassionate Appointment Rules, 1994 based upon the impugned notification SRO 120 of 2018 has been rejected.
(c) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to consider and appoint the petitioner against any post commensurate to his qualification in the J&K hoard of School Education Jammu or in any Government department under the J&K Compassionate Appointment Rules, 1994.
d. Any other relief, which this Hon‟ble Court in the facts and circumstances of the case deems fit and proper."
2. The facts as are stated in the petition, whereunder the aforesaid reliefs have been prayed by the petitioner are that the mother of the petitioner, namely, Smt. Geeta Devi (hereinafter, "the deceased") while working as Orderly in J&K Board of School Education, Jammu (for short the, "Board") died during service on 30.06.2017 and soon after her death, the petitioner applied on 19.09.2017 to the Board for appointment on compassionate grounds in terms of SRO 43 of 1994, whereupon the receipt of the said application, the Board in terms of letter dated 27.11.2017 called upon the petitioner to furnish the requisite documents including Dependent Certificate, whereafter the petitioner submitted the said documents including the said certificate obtained from the Sub-Divisional Magistrate, Jammu South (Gangyal) on 28.02.2018 and upon receipt of the same, it was incumbent upon the respondent-Board to consider the case of the petitioner for appointment on compassionate grounds, however, the respondents 3 & 4 again called upon the petitioner to furnish a certificate with regard to the element of compassion from the office of the Deputy Commissioner, Jammu, which certificate as well came to 3 WP(C) No. 306/2022 be furnished to the respondents after obtaining the same from the Deputy Commissioner concerned on 29.06.2019 and even after submission of the said certificate, the case of the petitioner remained pending with the Board, however, thereafter the respondent 3 in terms of Letter No. Adm.-C/2018/A/15 dated 10.03.2020 purportedly with the concurrence of respondent 2 informed the petitioner that his case for appointment on compassionate grounds stands rejected in terms of SRO 120 of 2018 dated 05.03.2018 also on the ground of his being married.
3. The petitioner has filed the instant petition on the following grounds:-
"a. that the impugned notification SRO 120 of 2018 dated 05.03.2018 issued by the respondent No. 2 is totally illegal, arbitrary and contrary to the provisions of law, therefore, the same deserves to be declared as illegal and unconstitutional; b. That the respondents has failed to consider that the amendment vide impugned notification SRO 120 of 2018 dated 05.03.2018 has been made in Rule 5 of Jammu and Kashmir Compassionate Appointment Rules, 1994 but the petitioner has to be considered under Rule 4 of the Jammu and Kashmir Compassionate Appointment Rules, 1994 as his mother has died in harness. Therefore, the petitioner deserves to be appointed on compassionate grounds and the petition deserves to be allowed on this ground alone;
c. That the impugned notification SRO 120 of 2018 dated 05.08.2018 is further bad in the eyes of law inasmuch as the same offends the basic spirit of Articles 14, 16, 19 and 21 of the Constitution of India. Denial of appointment under the compassionate appointment rules to the married son or daughter of the deceased employee, as has been done by the respondent no.2 vide impugned notification SRO 120 of 2018, does not have any legal sanctity. The impugned SRO 120 of 2018 explicitly provides discrimination between married and unmarried sons and daughters of a deceased employee and renders the entire legislation with respect to compassionate appointment totally redundant and vitiated. The term 'compassion' does not lose its significance in the matter of appointment under the J&K Compassionate Appointment Rules whether the dependent of a deceased employee is married or unmarried. In the instant case, as late as in the year 2019 the Deputy Commissioner, Jammu has duly certified in the certificate dated 29.06.2019 that the element of compassion still existing in the family of the deceased. There is no evidence to 4 WP(C) No. 306/2022 the contrary which demolishes the element of compassion, therefore, the impugned SRO 120 of 2018 clearly takes away the vested right of a dependent i.e. the petitioner that too without any lawful justification. While envisaging the impugned provision in the J&K Compassionate Appointment Rules, 1994 vide impugned notification SRO 120 of 2018, the respondent no.2 appears to have completely shuts down the eyes to the crucial element of compassion and hardships being faced by the family of the deceased employee. In this case, the father of the petitioner has already expired and the mother of the petitioner who was serving as Orderly in the J&K Board of School Education, Jammu died in harness. No other person in the family has any government employment. Mere marriage of a son or daughter cannot be a valid ground to deny/deprive him/her the compassionate appointment as such proposition does not have any legal backing as well as legal sanctity. On this ground also the impugned notification SRO 120 of 2018 as also the rejection order dated 10.03.2020 based upon the impugned SRO 120 deserves to be quashed;
d. That the Hon'ble Supreme Court of India in cases reported in (2007) 9 SCO 571 (State Bank of India and ors v. Jaspal Kaur) and (2009) 7 see 295 (Maharani Devi and Anr. v. Union of India and ors) considered similar issue as to the claim of compassionate appointment of a candidate and the Rule which will apply for considering such claim. The Hon'ble Supreme Court held that the effect of subsequent policy decision will not affect the accrued right of a candidate seeking compassionate appointment and the consideration of the claim should be under the Rules which prevailed on the date of death of the Government servant as the right of the legal heir got crystallized on the date of death of the Government servant.
Retrospectively amending Rule, Fixing strict norms, is also not valid as accrued vested right under the scheme in vogue cannot be taken away as observed by the Hon'ble Supreme Court of India in a case reported in (1997) G see 623 (Railway Board v. C. R. Rangadhamaiah). In the instant case, the widow mother of the petitioner expired on 30.06.2017 and the petitioner applied for compassionate appointment by filing application dated 19.09.2017. On these dates, there was no such provision of denial/deprivation of a dependent to claim compassionate appointment under the J&K Compassionate Appointment Rules, 1994 mere on the ground of he/she being married. The impugned rule has been promulgated only on 05.03.2018 but its applicability has been made retrospectively by the respondent no. 2 by adding an explanation below the said rule which is to the effect that "only pending/rejected cases on the date of issuance of SRO notification 120 of 2018 dated 05.03.20]8 shall be decided in accordance with the said notification". A perusal of this explanation means that the 5 WP(C) No. 306/2022 impugned SRO 120 of 2018 has been brought into force for a limited purpose and for a limited period so as to decide the pending/rejected cases on the date of issuance of the impugned SRO. Such an explanation is thus aimed at applying the provision of sub-rule (6) in Rule S added in the J&K Compassionate Appointment Rules 1994 vide impugned notification SRO 120 of 2018 retrospectively, which, in view of the law laid down by the Hon'ble Supreme Court of India as respectfully referred above, is not legally sustainable;
(e) That the Hon'ble Supreme Court of India in Union of India & Ors. V. Tushar Ranjan i Mohanty & Ors., (1994) S SCO 450, has declared the amendment with retrospective operation as ultra vires by holding that as it takes away the vested rights of the petitioners therein and thus, was unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution. While deciding the said case, the Ho‟ ble Supreme Court placed very heavly reliance on the judgment in P.D. Aggarwal and ors. Vs. State of UP and ors., AIR 1987 SC 1676, wherein it was held as under:-
"...the Government has power to make retrospective amendments to the Rules but if the Rules purport to take away the vested rights and are arbitrary and not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Articles 14 and 16 of the Constitution."
f. That the most considerable and significant issue involved in the compassionate appointment rules is "compassion" and "hardship" being faced by the family of the deceased employee. This aspect has been clearly overlooked by the respondent no.2 while debarring the married son or daughter of the deceased employee. Further the impugned provision as contained in SRO 120 of 2018 does not have any nexus with the object to be ultimately achieved and rather the impugned provision prima facie discriminates between the similar set of citizens on the ground of their marriage alone. Marriage of a dependent of a deceased government employee does not take away the element of compassion from him/her. The respondent no.2 while promulgating the impugned SRO has completely negated the concept of law and laid down such a provision which on the face of it is highly discriminatory, unfair and inequitable and cannot stand the test the judicial scrutiny. On this ground also, the impugned SRO 120 of 2018 alongwith, the impugned letter/order dated 10.3.2020 rejecting the claim of the petitioner for compassionate appointment deserves to be quashed;
(g) That the impugned notification SRO 120 of 2018 from the explanation appended at the bottom of the said SRO makes its 6 WP(C) No. 306/2022 applicability retrospectively which renders the impugned notification SRO 120 of 2018 totally illegal, unconstitutional and unsustainable in the eyes of law. It is a cardinal principle of law that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. This principle of law follows from the legal maxim 'Nova constitution futuris formam imponare dabet non praeteritis‟, i.e. a new law ought to regulate what is to follow, not the past. The same view point has been taken in Monnet Ispat & Energy Ltd. V. Union of Indian & Ors (2012) 11 SCC 1, where the Hon'ble Supreme court has held that this principle operates until and unless there is an express provision in the statute stating/indicating retrospective applicability of the statutes.
h. That the impugned notification SRO 120 of 2018 is aimed at infringing and scuttling down the vested right of the petitioner, therefore, the same is highly illegal and unconstitutional, therefore, the same deserves to be declared so by this Hon‟ble Court while exercising its extraordinary writ jurisdiction; i. That in another case the Hon‟ble Supreme Court in case titled Bombay Labour Vs. Messrs International Franchises 1966 AIR 942 directed abrogation of a Rule which according to which if a lady workman gets married, her services are treated as automatically terminated. With respect to the rule, subject matter of controversy in the aforesaid case, the Hon‟ble Supreme Court held that "the rule which is in force in the respondent-concern however assumes that merely by marriage the efficiency of a woman employee is impaired and such an assumption in our opinion is not justified;
j. That without prejudice to what has been respectfully urged herein above and in the alternative, it is submitted that the impugned SRO 120 of 2018 came to be issued on 05.03.2018 and the case of the petitioner for his compassionate appointment was already pending prior to the issuance of the impugned SRO, therefore, his case for compassionate appointment is required to be considered by the respondents without taking into consideration the rigor of SRO 120 of 2018. The impugned SRO 120 of 2018 is highly discriminatory and is aimed at causing grave and serious prejudice to the rights of the petitioner, therefore, its applicability cannot be made enforced on the case of the petitioner which was already at the advance stage of consideration when the impugned SRO 120 of 2018 came to be issued;
k. That the petitioner despite being married was dependent upon her mother who was the employee of respondent no.3 -Board. He has completed host of formalities and requirements attending for getting the compassionate appointment. The 7 WP(C) No. 306/2022 existence of compassion has been duly certified to be existed as late as in the year 2019 by the Deputy Commissioner, Jammu, therefore, respondents are not justified in rejecting the claim of the petitioner for his compassionate appointment; l. That the denial of appointment under compassionate appointment rules is visiting the petitioner and his family with penal consequences and wrath of hardships. Therefore, the impugned order rejecting the claim of the petitioner deserves to be quashed;
m. That the petitioner is fully eligible and entitled to be appointed in government employment under appointment rules and the right which has vested with the petitioner under the J&K Compassionate Appointment Rules, 1994 cannot be allowed to be taken away by the respondents under any circumstances;
(n) That the petitioner is struggling for his appointment under the J&K Compassionate Appointment Rules, 1994 for the last three years and the respondents by banking upon the impugned SRO 120 of 2018 have illegally and arbitrarily rejected the case of the petitioner;
(o) That the additional or alternate grounds may be allowed to be urged at the time of hearing."
4. Objections to the petition have filed by the respondents.
5. In the objections filed by the respondents 1 & 2, it is being stated that the Secretary of the Board had vide Communication dated 19.12.2019 informed the respondent 1 that the mother of the petitioner had died in harness on 30.06.2017 and as per the Dependent Certificate, the said deceased had left behind two sons and two daughters, amongst whom the present petitioner sought compassionate appointment under SRO 43 of 1994, while stating further that the Board had provided therein the said Letter that the case of the petitioner was processed by the Board and the petitioner was directed to furnish the requisite documents, which he submitted on 02.03.2018, whereafter an advice from respondent 1 was sought as to whether the married son of a deceased is eligible for appointment under SRO 120 of 2018 dated 05.03.2018, whereafter the case of the 8 WP(C) No. 306/2022 petitioner have had been examined by the Board and consequently, in terms of Letter dated 04.02.2020 informed the petitioner that he is ineligible for appointment on compassionate grounds in terms of SRO 120 dated 05.03.2018.
It is being further stated in the said reply that the Board being an autonomous body has to see whether SRO 43 of 1994 has been made applicable to the Board, as the rules of the Government ipso facto do not apply to it unless the same are made applicable in terms of the mechanism under the statutory Act.
It is being also stated that the petitioner's case stands duly considered by the Board and rejected due to his marital status and the said rejection aligns with the eligibility criteria set out in SRO 120.
It is being lastly stated that the Government has the discretion to amend laws with retrospective or prospective effect and such amendments are not inherently unreasonable or arbitrary.
6. In the reply filed by the respondent Nos. 3 & 4, it is not being denied that the deceased was working in the Board and had died in harness and that the petitioner claiming to be dependent upon the deceased, applied for appointment on compassionate grounds, which was considered in accordance with the SRO 43 of 1994 and that the petitioner was found to be ineligible for seeking such an appointment in terms of SRO 120 dated 05.03.2018 as also being married, as such, the case of the petitioner in terms of Communication dated 10.03.2020 was closed upon informing the petitioner.
It is further stated that the appointment on compassionate grounds cannot be claimed as a matter of right, but is a pure discretion of the competent authority. It is reiterated in the reply that the case of the petitioner was considered in consultation with General Administration Department of the Jammu & Kashmir 9 WP(C) No. 306/2022 and consequently, was rejected on account of the fact that the petitioner being married, is not eligible in terms of the SRO 120 for being appointed on compassionate grounds.
Heard learned counsel for the parties and perused the record.
7. Before proceeding to advert to the case set up by the parties in their respective pleadings, it would be significant to mention here that as a rule, appointments in the public services are to be made strictly on the basis of open invitation of applications and merit, however, to this general rule, there are some exceptions carved out in the interest of justice and to meet certain exigencies and one such exception is in favour of the dependents of an employee dying in harness and leaving his or her family in penury and without any means of livelihood.
8. Keeping in mind the above and reverting back to the case in hand, it is an admitted fact and not in dispute that the deceased while working as an Orderly in the Board had died in harness on 30.06.2017 and the petitioner herein immediately thereafter claiming to have been dependent upon the deceased, applied for compassionate appointment before the Board on 19.09.2017.
9. Perusal of the record pertaining to the case produced by the counsel for the respondent-Board would reveal that the said application have had been accompanied with the copy of the Death Certificate of the deceased issued by the Registrar Births and Deaths, Municipal Corporation, Jammu dated 26.08.2018, copies of Diploma and Marks Certificates of SSE (10th Class) pertaining to the petitioner bearing Roll No. 137248, copy of Permanent Resident Certificate of the petitioner issued by the Additional Deputy Commissioner, Jammu and copies of Aadhar Card and Driving Licence. The said record would further reveal that on 21.11.2017 and 27.01.2018, the petitioner had been called upon by the Board to 10 WP(C) No. 306/2022 submit further documents and details of the dependents of the deceased, which have had been furnished by the petitioner on 03.03.2018, whereupon the case of the petitioner had been placed before the competent authority for accord of sanction and approval, besides referring the matter to the Joint Secretary Legal of the Board for his opinion about the veracity and validity of the documents produced by the petitioner, who seemingly, verified the said documents on 07.03.2018 and 13.03.2018 and opined as under:-
"Therefore, the case for grant of appointment under SRO 43 in favour of the applicant may be processed under rules for accord of approval to the appointment to the petitioner as Orderly in the pay band of ₹4440-7440 (IS), plus Grade Pay of ₹1300/- on compassionate grounds under SRO 43 of 1994 with immediate effect."
10. A deeper and closer examination of the said record file, however, would reveal that thereafter the Board referred the case of the petitioner to the Chief Accounts Officer Central for his advice, who seems to have for the first time referred to the provisions of SRO 120 dated 05.03.2018, whereafter the matter had been referred to the Standing Counsel of the Board for his opinion, who on 24.03.2018 opined that SRO 120 of 2018 is applicable to the case and requires to be decided thereunder the said SRO, whereafter the Board consequently in terms of the impugned Communication, rejected the case of the petitioner in terms of the impugned order.
11. Having regard to the aforesaid factual position obtaining in the matter and the case set up by the parties in their respective pleadings, the moot question to be considered by this Court would be as to whether the case of the petitioner for appointment on compassionate grounds has been rightly rejected by the respondent-Board or not.
11 WP(C) No. 306/2022
12. Insofar as the impugned Communication dated 10.03.2020 is concerned, it is manifest that the case of the petitioner stands rejected by the respondent-Board on the premise that the petitioner is married since 29.11.2009, i.e., prior to the death of the deceased and that SRO 120 of 2018 was applicable to the case of the petitioner in terms of the Explanation appended to the said SRO, which provides that "the pending/rejected cases shall be decided in accordance with the said SRO."
13. Insofar as the rejection of the claim of the petitioner on the ground of his being married before the death of the deceased is concerned, neither SRO 43 of 1994 nor SRO 120 of 2018 excludes a married dependent son of deceased employee from seeking compassionate appointment. In this regard, a reference to the definition of family provided in SRO 43 would be relevant, which reads as under:-
"(d) „Family Member means spouse, son, daughter, adopted son, adopted daughter, sister or brother dependent of the deceased."
Thus, in view of the above, the rejection of the case of the petitioner for appointment on compassionate grounds by the respondent-Board in terms of the impugned Communication on the ground of his being married prior to the death of his deceased mother is legally misconceived and untenable.
14. Insofar as the plea of the respondent-Board that the case of the petitioner was required to be considered in terms of SRO 120 of 2018 pursuant to the Explanation (supra) appended to the said SRO being a pending cases is concerned, the said plea is also legally untenable, firstly, in view of the position of law laid down in this regard, a Division Bench of this Court in case titled as, 12 WP(C) No. 306/2022 "State of J&K and ors. Vs. Madan Gopal, reported in 2014(1) JKJ[HC] 461" has, at para-15, held as under:-
"15. It is well settled law that the claim of a person for appointment on compassionate grounds is to be examined on the anvil of the rules/policy in vogue at the time of death in harness of a Government servant on whom such person claims to have been dependent."
Thus, in view of the aforesaid position of law, the respondent-Board could not have applied the provisions of SRO 120 to the case of the petitioner, but considered and settled his case under SRO 43 prior to the coming into being of SRO 120, more so, when the case of the petitioner have had been accepted and the sanction for approval was awaited only on 03.03.2018 itself. The respondent- Board seemingly delayed the said sanction without any lawful justification and without any fault of the petitioner.
15. For what has been observed, considered and analyzed hereinabove, the instant petition deserves to be allowed.
16. Accordingly, the petition is allowed and the impugned Communication No. Adm.-C/2018/A/15 dated 10.03.2020 is quashed, as a consequence whereof, the respondent-Board is commanded to offer compassionate appointment to the petitioner notionally with effect from 03.03.2018, i.e., the date approval was sought from the competent authority in this regard.
17. Disposed of alongwith connected applications.
(Javed Iqbal Wani) Judge Jammu 16.07.2025 Ram Krishan Whether the order is speaking? Yes Whether the order is reportable? Yes Ram Krishan 2025.07.23 13:13 I attest to the accuracy and integrity of this document