State Of J&K & Others vs Sajad Ahmed Mir

The facts in nutshell are that the father of Sajad Ahmed Mir respondent - applicant was working as the Lineman in Power Development Department (PDD), Civil Secretariat, Srinagar. He died on March 6, 1987 while in service. It appears that the applicant applied on September 20, 1991 for getting an appointment on compassionate ground against the vacant post resulted due to death of his father. It was the say of the applicant that his case was forwarded by the authorities with recommendation in 1993 to give him appointment on compassionate ground. It was also his case that the Administrative Department recommended to appoint the applicant after relaxation of qualification as well as in age. The matter was taken up by the Executive Engineer, Superintending Engineer as also by the Chief Engineer of the Civil Secretariat of the Power Development Department and the Administrative Department. According to the applicant, on or about June 8, 1999, the Administrative Department conveyed its decision to the Chief Engineer, Electric Maintenance and RE Wing, Srinagar that the request of the applicant could not be acceded to and no appointment could be given.

The learned single Judge after considering the relevant facts and the reply affidavit held that the decision was taken in March, 1996 not to appoint the applicant on compassionate ground and he was informed accordingly. The applicant had never challenged that decision. What was done by the authorities in 1999 was merely reiteration of the decision taken in 1996. It was also observed by the learned single Judge that the whole purpose of compassionate appointment of a family member of a Government employee dying in harness is to obviate hardship likely to be caused to the family and adverse financial difficulties which it is likely to face due to death of its bread earner. Such appointment is not an appointment under statutory right but is in the nature of concession granted by the State Government, keeping in view extreme hardship of indigent family of the deceased employee. After considering the facts and circumstances, the Administrative Department declined to offer compassionate appointment to the applicant. From the record, it is clear that in 1996, the decision was taken that the applicant could not be appointed on compassionate ground and it was conveyed to the applicant. That action was never challenged. In 1999, the petition was filed. According to the learned Judge, once on consideration of facts and circumstances, a conscious decision was taken and the prayer was turned down, no case was made out by the applicant so as to entitle him to get relief and accordingly the petition was dismissed. Being aggrieved by the said order, the applicant approached the Division Bench by filing Letters Patent Appeal. The Division Bench of the High Court proceeded to consider the matter by observing "when compassion is sought, then reason has to take back seat". It then proceeded to consider the matter and observed that the applicant applied for compassionate appointment in September, 1991. At that time, he was underage. But his case was recommended by Administrative Department for relaxation of age bar. In the meantime, Jammu & Kashmir (Compassionate Appointment) Rules, 1994 came into force. The claim of the appointment was declined by the Administrative Department in 1996 and communicated vide letter dated June 8, 1996. The Division Bench noted that the said letter no doubt mentioned the fact that earlier also the claim of the applicant was declined. Reference was also made to earlier communications. According to the Division Bench, all the Departments were favourable to the applicant and recommended his case for compassionate appointment. The father of the applicant died in harness in 1987. The claim of the applicant for compassionate appointment was, therefore, supposed to be considered in terms of rules and regulations then in force. The Division Bench observed that earlier no limitation was fixed for applying for compassionate appointment and the claim of the applicant was wrongly rejected by the authorities. Accordingly, he was held 'entitled' to compassionate appointment in terms of rules and regulations which were in existence before coming into force of 1994 Rules and a direction was issued to consider the case of the applicant and to take decision within a period of six weeks from the date when the copy of the order would be made available to the authorities. The appeal was accordingly allowed holding that the applicant would be entitled to consideration from the date three years prior to the filing of the petition. The Court held that for that period, the applicant would be given notional benefits minus monetary benefits. Being dissatisfied with the order of the Division Bench, the authorities have approached this Court. On October 17, 2003, notice was issued on application for condonation of delay in filing SLP (since there was delay of 172 days) as well as on Special Leave Petition. Interim stay was granted meanwhile. Thereafter, the matter was heard from time to time. Leave was granted on October 4, 2004 and hearing was expedited.

In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and 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 passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of 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 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. For the foregoing reasons, the appeal deserves to be allowed and it is accordingly allowed. The order passed by the Division Bench is set aside and that of the learned single Judge is restored. In other words, the petition filed by the respondent hereinapplicant before the learned single Judge is ordered to be dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs.