Document Fragment View

Matching Fragments

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 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;

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 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;

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;