HC holds compassionate appointment not alternate source of recruitment, petition dismissed

21/11/2022

JAMMU, Nov 20: The High Court of J&K and Ladakh at Jammu comprising of Justice Wasim Sadiq Nargal has dismissed a writ petition and held that compas-sionate appointment is not an alternate source of recruitment. The writ petition has been dismissed on 16th Nov. 2022. The text of the Judgment reads … " ''
"HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Reserved on: 19.09.2022 Pronounced on : 16.11.2022 SWP No. 697/2015 IA No. 845/2015
Manjeet Singh …..Appellant(s)/Petitioner(s) Through: Mr. Dhiraj Choudhary, Advocate. Vs State of J&K and others .…. Respondent(s) Through: Mr. Vishal Bharti, Dy. AG for R- 1, 3 and 4 None for R-2 Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE JUDGMENT 1. The present writ petition is filed by way of third round of litigation, wherein the petitioner has called in question the order impugned bearing No. Adm/NG/04/57/6024-26 dated 20.10.2011 issued by the Director, Horticulture Department, Jammu by virtue of which, the case of the petitioner for compassionate appointment has been rejected by the department. Besides, the petitioner has filed the present writ petition seeking a writ in the nature of mandamus, commanding the respondents to consider his case for appointment as Class-IV employee on compassionate grounds. 2. The brief facts giving rise to the filing of the present writ petition are that father of the petitioner was a Class-IV employee of the Horticulture Department, who was murdered on 19.07.1989 while he was in active service. It has been contended by the learned counsel for 2 SWP No. 697/2015 IA No. 845/2015 the petitioner that since the mother of the petitioner was illiterate, so she did not apply for her appointment on compassionate grounds and at that relevant point of time, the petitioner was also a minor, so he too did not apply for the same. 3. The further case of the petitioner is that after attaining majority and eligibility, he immediately applied for his appointment on compassionate grounds, in terms of Jammu and Kashmir Employees (Death in harness) Dependents Rules 1989 notified vide SRO 194 of 1989. It has further been contended by the learned counsel for the petitioner that the petitioner submitted all the relevant documents including the dependent certificate before the respondents. 4. The further case of the petitioner is that though the case of the petitioner was processed by the respondents, but the same was not considered by them, which compelled the petitioner to file a writ petition, which was registered as SWP No. 2400/2010 before this Court and the Hon'ble Court vide order dated 13.10.2010 disposed of the same with the following observations: "Learned counsel for the petitioner states that the instant petition can be and is disposed of at initial stage itself with a direction to the respondents that they shall consider the case of the petitioner as projected in accordance with the rules governing the field and pass appropriate orders thereof. Ordered accordingly. Let appropriate orders as may be deemed appropriate in accordance with the rules be passed within a period of three months from the date a copy of this order is communicated to the respondents." 5. The further case of the petitioner is that since the respondents were under legal obligation to accord consideration to the case of the 3 SWP No. 697/2015 IA No. 845/2015 petitioner in terms of directions passed by this Court vide order dated 13.10.2010 passed in SWP No. 2400/2010, but the respondents did not bother to accord consideration to the case of the petitioner on compassionate grounds and the same compelled the petitioner to knock the doors of this Court by way of second round of litigation by filing another petition which was registered as SWP No. 2902/2014, which was disposed of by this court vide order dated 14.10.2014 with the following observations: "This petition is accordingly disposed of with a direction to the respondents to consider the case of the petitioner under rules and having regard to the letter dated 29.11.2010 and also due regard to the judgment passed by the coordinate Bench of this Court in Kumar Shiv Satya Naryan V State of J&K and others, reported as 2013 (11) SLJ 552. Let the consideration order be passed within a period of eight weeks from the date, a certified copy of this order along with copies of annexures are made available to the respondents." 6. Learned counsel for the petitioner, Mr. Dhiraj Choudhary has vehemently argued that the respondents instead of according consideration to the case of the petitioner in conformity with the directions passed by this Court mentioned supra, rejected the case of the petitioner pursuant to the opinion of the Law Department which is evident from bare perusal of communication dated 04.10.2011 issued by the Under Secretary to Govt., Agriculture Production Dept. to Director, Horticulture Department, Jammu, wherein, the Law Department has opined as under: "The object of the compassionate appointment is to provide immediate succour to the dependent legal heirs of the deceased employee who dies in harness. It is not an alternate source of recruitment. The applicant having sought appointment on compassionate grounds after 13 4 SWP No. 697/2015 IA No. 845/2015 years is neither covered under rules nor the spirit/object of the scheme of the compassionate as such order keeping in view the directions passed by the Hon'ble Court in the writ petition." 7. The further case of the petitioner is that pursuant to the opinion of the Law Department, the Director Horticulture Department, Jammu rejected the case of the petitioner by virtue of detailed consideration order No. Adm/NG/04/57/6024-26 dated 20.10.2011, which is impugned in the present writ petition. The petitioner feeling aggrieved of the same, has called in question the aforesaid order through the medium of the present writ petition. 8. The main plank of the arguments by the learned counsel for the petitioner is that the order impugned has been passed by the respondents in violation of the principles of natural justice, as no proper opportunity of being heard has been given to the petitioner. Besides, the petitioner has contended that these communications were never communicated to him and have been issued with a view to deny the petitioner his legitimate right of seeking compassionate employment. The further stand of the petitioner is that had these communications been in the knowledge of the petitioner, then the petitioner would have challenged the same before this Court at an appropriate time. Since, the petitioner was not informed about these communications, so he was deprived of challenging the same. 9. Learned counsel for the petitioner further submits that these communications have been issued at his back without providing him an opportunity of being heard and accordingly, he has prayed for quashment of the same. 5 SWP No. 697/2015 IA No. 845/2015 10. Learned counsel for the petitioner further submits that the order of consideration is not in conformity with the directions passed by this Court and the same cannot sustain the test of law, as the order impugned is sheer non application of mind on part of the respondents in rejecting the case of the petitioner. His further stand is that although under the new rules, duration for applying on compassionate grounds is 1 year, but under old rules there was no such limitation period for applying for compassionate appointment. Thus, the petitioner has vested right of being considered for compassionate appointment. 11. Per contra, reply has been filed by the respondents and as per the stand of the respondents; the petitioner is not entitled to the compassionate appointment in the Government service in terms of SRO 43, as the basis for compassionate appointment no longer survive. 12. Mr. Vishal Bharti, learned counsel for the respondents submits that admittedly, death of the father of the petitioner took place on 19.07.1989 while working in the department and now, the petitioner cannot seek employment after 26 years of death of his father as the petitioner and his mother can no longer be deemed to be suffering from penury and hardship on account of death of father of the petitioner that took place on 19.07.1989. 13. Learned counsel for the respondents further submits that the order impugned has been issued strictly in conformity with law and no fault can be found in the same. On this score, he has prayed for dismissal of the writ petition. 14. Heard learned counsel for the parties and perused the record. 6 SWP No. 697/2015 IA No. 845/2015 15. This is a peculiar case where the petitioner is seeking compassionate appointment after 26 years of death of his father that took place on 19.07.1989, by way of filing a writ petition in 2015. There is no denial to the fact that general rule of appointment to a public service is that it should be purely on merit and through open notification. This is the normal route though which one can get into a public services employment, however, as every rule can have exceptions; there are few exceptions to the said rule also, which have been followed to meet certain contingencies. As per one such exception, relief is provided to the bereaved family of a deceased employee by accommodating one of his/her dependents against a vacancy. The object of compassionate appointment which falls within the exception clause is to give succour to the family which has suddenly been plunged in the penury due to untimely death of sole bread earner. The object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment. 16. Admittedly, in the present case, the family members of the deceased employee had managed for 26 years on their own, after his death and now, it does not lie in the mouth of the petitioner to claim compassionate appointment as a matter of his right after 26 years, when the family has already tide over the financial crisis on account of untimely demise of its sole earning family member. 17. The whole object of granting compassionate appointment is to enable the family to tide over the financial crisis. The object is very laudable i.e. not to give a member of such family a post much less a post for the post held by the deceased. The very object of the compassionate 7 SWP No. 697/2015 IA No. 845/2015 appointment to the dependent of the deceased is to give immediate relief to the hardship and distress caused to the family by untimely demise of the earning member of the family and if claim of the dependent i.e. petitioner is accorded consideration at this stage i.e. after 33 years of death of his father is to be countenanced and would amount to another mode of recruitment of the dependent of the deceased government servant, which cannot be encouraged, dehors the recruitment rules, which are reproduced herein under: "The State Government in the year 1969 made Jammu and Kashmir Civil Services (Decentralisation of and Recruitment to Non-Gazetted Cadres) Rules 1969 notified as SRO 588 on 21.10.1969. The Rules of 1969 made a provision for appointment on compassionate grounds. The provision for compassionate appointments in Rules of 1969 for appointment on compassionate grounds, was followed by J&K Employees (Death in harness) Dependents Rules 1989 notified as SRO 194 of 1989. The Rules of 1989 were replaced by J&K Compassionate Appointment Rules 1991 notified vide SRO 283 of 1991. J&K Compassionate Appointment Rules of 1994 notified vide SRO 43 of 1994 repealed the Rules of 1991." 18. I am fortified by the view of the Hon'ble Supreme Court in case titled "Haryana State Electricity Board and another Vs. Hakim Singh" reported as 1997 (8) SCC 85, the operative portion of which is reproduced as under: "13. This Court has considered the scope of the aforesaid circulars in Haryana State Electricity Board V. Naresh Tanwar and another etc. In that case widow of a deceased employee made an application almost twelve years after the death of 8 SWP No. 697/2015 IA No. 845/2015 her husband requesting for accommodating her son in the employment of the Board, but it was rejected by the Board. When she moved the High Court the Board was directed to appoint him on compassionate grounds. This Court upset the said direction of the High Court following two earlier decisions rendered by this Court, one is Umesh Kumar Nagpal V. State of Haryana and others, the other in Jagdish Prasad V. State of Bihar and Another. In the former, a Bench of two Judges has pointed out that "the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The Object is not to give a member of such family a post much less a post for the post held by the deceased. "In the latter decision, which also was rendered by a Bench of two Judges, it was observed that "the very object of appointment of a dependent of the deceased employees who die in hardness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family." The learned judges pointed out that if the claim of the dependent which was preferred long after the death of the deceased employee is to be countenanced it would amount to another mode of recruitment of the dependant of the deceased government servant "which cannot be encouraged, dehors the recruitment rules." 19. The compassionate appointment is not meant to substitute the regular employment and cannot be granted after a lapse of a reasonable period of time. The consideration for such employment is not a vested right which can be exercised at any time in future, as the object is to enable the family to get over the financial crisis which it faces at the time of death of sole bread earner and accordingly, it can safely be concluded that the compassionate appointment cannot be claimed and offered after a lapse of time and after the crisis is over. 20. In an identical matter, the Hon'ble Supreme Court has observed in case titled "Umesh Kumar Nagpal Vs. State of Haryana" reported as 1994 SCC (4) 138, the operative portion of which is reproduced as under: 9 SWP No. 697/2015 IA No. 845/2015 "6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." 21. I am also fortified by the view of the Hon'ble Supreme Court in case titled "State of J&K and others Vs. Sajad Ahmed Mir" reported as (2006) 5 SCC 766, the operative portion of which is reproduced as under: "11. We may also observe that when the Division Bench of this High Court was considering the case of the applicant holding that he had sought "compassion", the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally an employment in the Government or other public sectors should be open to all eligibly candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole bread winner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution." 22. It is settled preposition of law that the compassionate appointment is not an alternate source of recruitment and the petitioner having sought appointment on compassionate grounds after 26 years is neither covered under rules or the spirit/object of the scheme for compassionate 10 SWP No. 697/2015 IA No. 845/2015 appointment and the order of rejection, as such, is perfectly legal, justified and inconsonance with the rule in vogue. 23. Thus, the order of rejection which is impugned in the present writ petition has been issued pursuant to the decision taken by the administrative department and opinion rendered by the Law Department which is justified, based on correct legal position and cannot be faulted as it is an interpretation of relevant applicable rules. Accordingly, I uphold the order dated 20.10.2011, issued by the Director, Horticulture Department, Jammu. 24. In view of what has been discussed above, the present writ petition is, accordingly, dismissed. 25. Registry is directed to return the original record to the respondents.”

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