Faisal Iqbal Awan vs U.T Of J&K Through Financial Commissioner & Ors.

**01.**The applicant has instituted the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, calling in question Government Order No.570-Home of 2023 dated 23.11.2023, whereby his claim for compassionate appointment under the Jammu and Kashmir Compassionate Appointment Rules, 1994, notified vide SRO-43 of 1994, has once again been rejected by the respondents pursuant to the directions issued by this Tribunal in T.A. No.66/2022.

**02.**The applicant seeks, inter alia, quashing of the aforesaid Government Order dated 23.11.2023 and a consequential direction commanding the respondents to consider and appoint him on compassionate grounds under the provisions of SRO-43 of 1994, together with all consequential benefits.

The facts, to the extent relevant for adjudication of the present controversy, are largely undisputed.

The applicant is the brother of late Constable Aftab Iqbal Awan No.1173/KP, who was serving in the Jammu and Kashmir Police. On 02.11.2002, while performing security duty as Personal Security Officer (PSO) of Shri Sikander Ali Khan, a defeated candidate of the Karnah Assembly Constituency, the said constable was killed in a militant attack at Batmaloo, Srinagar. During the same incident another police constable also lost his life and the protected person, namely Shri Sikander Ali Khan, subsequently succumbed to the injuries sustained in the attack. FIR No.149/2002 under Sections 302 and 307 RPC read with Section 7/25 of the Arms Act came to be registered at Police Station Batmaloo. The investigation, however, could not culminate in tracing the perpetrators and the case was ultimately closed as untraced.

**05.**According to the applicant, at the time of the unfortunate death of his brother he was a minor and was wholly dependent upon the earnings of the deceased, who was the sole breadwinner of the family. It is pleaded that immediately upon attaining majority he approached the authorities seeking appointment under the Jammu and Kashmir Compassionate Appointment Rules, 1994, notified vide SRO-43 of 1994.

**06.**The record reveals that the case of the applicant was processed by the Police Headquarters and was forwarded to the Home Department for consideration under the provisions of SRO-43 of 1994. However, the Home Department, by communication dated 17.05.2017, informed the Director General of Police that the applicant's case was not covered under SRO-43 of 1994 read with SRO-255 of 2016.

**07.**Aggrieved by the aforesaid communication, the applicant initially approached the Hon'ble High Court of Jammu and Kashmir by filing SWP No.1279/2017. Upon establishment of the Central Administrative Tribunal's jurisdiction over service matters, the writ petition stood transferred and was registered as T.A. No.66/2022.

**08.**This Tribunal, by judgment dated 04.09.2023, allowed the Transfer Application, quashed the communication dated 17.05.2017 and remitted the matter to the respondents for fresh consideration. While doing so, the Tribunal observed that the impugned communication was a cryptic and non-speaking order, failed to disclose the actual reasons for rejection, and further held that SRO-255 of 2016 could not be applied retrospectively to the applicant's case, his application having admittedly been submitted much prior to the issuance of the said amendment. The respondents were accordingly directed to reconsider the claim of the applicant and pass a detailed, reasoned and speaking order after taking into consideration the entire factual and legal position.

**09.**Pursuant to the aforesaid directions, the respondents reconsidered the matter and passed Government Order No.570-Home of 2023 dated 23.11.2023. By the said order, the claim of the applicant has once again been rejected principally on the grounds that: (i) the applicant, being the brother of the deceased police constable, was not entitled to compassionate appointment under SRO-43 read with SRO-255 of 2016; (ii) the application had been submitted beyond the period prescribed under the Rules; and (iii) after more than two decades from the death of the employee, the element of compassion, which constitutes the basis of compassionate appointment, no longer survived.

It is this order which is the subject matter of challenge in the present Original Application.

Learned counsel appearing for the applicant submits that the respondents have virtually reiterated the very grounds which had already been examined by this Tribunal in the earlier round of litigation. It is argued that instead of complying with the directions contained in the judgment dated 04.09.2023, the respondents have merely expanded the reasoning while ultimately arriving at the very same conclusion which had already been found legally unsustainable.

It is further contended that the applicant's case squarely falls within the ambit of SRO-43 of 1994 as it stood at the relevant time. Learned counsel submits that under the original scheme, a dependent brother of a deceased Government servant formed part of the definition of "family" and was, therefore, entitled to seek consideration for compassionate appointment, subject to fulfilment of the prescribed conditions.

Learned counsel further submits that the respondents have committed a manifest error in again relying upon SRO-255 of 2016 despite the categorical findings recorded by this Tribunal in the earlier judgment that the said amendment has no retrospective application and cannot govern an application which had admittedly been preferred much prior to its promulgation.

It is next argued that the respondents have completely ignored the fact that the applicant was admittedly a minor on the date of death of the deceased employee and, therefore, could not have sought appointment immediately after the occurrence of the unfortunate incident. It is contended that once the disability of minority ceased, the applicant approached the authorities within a reasonable period and the respondents were under an obligation to examine his claim in the light of the relaxation provisions contained in the Scheme.

Learned counsel has also argued that Rule 7 of SRO-43 specifically empowers the competent authority to relax the requirements relating to age, educational qualification and limitation in deserving cases. According to him, although such statutory power exists, the impugned order is conspicuously silent regarding its applicability and does not disclose any reason whatsoever for declining to exercise the power of relaxation in favour of the applicant.

Another submission advanced on behalf of the applicant is that the respondents have mechanically observed that the element of compassion has ceased to exist merely because considerable time has elapsed since the death of the employee. According to learned counsel, such conclusion has been recorded without undertaking any enquiry into the actual financial condition of the family, the continuing dependency of the applicant, or the circumstances which prevented the applicant from approaching the authorities earlier. It is contended that mere passage of time, without an objective assessment of the financial hardship, cannot by itself justify rejection of a claim under a beneficial scheme.

Learned counsel further submits that the respondents have failed to appreciate the true object and purpose underlying the scheme of compassionate appointment. It is argued that while compassionate appointment is undoubtedly an exception to the general rule of public employment, the scheme nevertheless deserves to be implemented in a manner that advances its beneficial object rather than defeats it through an unduly technical or restrictive interpretation.

Per contra, learned Government Advocate appearing for the respondents has supported the impugned order. It is submitted that compassionate appointment is not a matter of right and can only be granted strictly in accordance with the governing statutory scheme.

It is argued that the applicant admittedly submitted his application nearly eight years after the death of the deceased employee, whereas SRO-43 of 1994 prescribed that an application should ordinarily be submitted within one year from the date of death. According to the respondents, the applicant's case thus fell outside the permissible limits of the scheme itself.

Learned Government Advocate further submits that the competent authority duly examined the applicability of SRO-255 of 2016 as well as the provisions of SRO-43 of 1994 before arriving at the conclusion that the applicant was not entitled to compassionate appointment. It is contended that after lapse of more than two decades, the very object of providing immediate financial assistance to the bereaved family had ceased to survive and, therefore, the rejection of the applicant's claim cannot be faulted.

It is also contended that compassionate appointment being an exception to Articles 14 and 16 of the Constitution of India, the provisions governing such appointments are required to be construed strictly and no appointment can be directed dehors the governing statutory scheme.

On the basis of the rival pleadings and submissions, the following questions arise for consideration:

Since all these issues are interrelated and arise out of the same factual matrix, they are taken up together for consideration.

Before adverting to the rival submissions, it would be appropriate to notice the settled legal position governing compassionate appointment. The law on the subject is no longer res integra and has been authoritatively settled through a catena of decisions rendered by the Hon'ble Supreme Court. It is well established that compassionate appointment is not a source of recruitment nor does it confer any hereditary or vested right upon the dependants of a deceased Government servant. Being an exception to the constitutional mandate of equality in matters of public employment embodied in Articles 14 and 16 of the Constitution of India, such appointment can only be made strictly in accordance with the scheme governing the field. Equally settled, however, is the principle that while the authorities are required to adhere to the statutory scheme, the provisions thereof are to be interpreted and applied in a manner which advances the object sought to be achieved by the scheme and not in a manner which defeats its beneficial purpose.

In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, the Hon'ble Supreme Court held that compassionate appointment is intended to enable the family of a deceased employee to tide over the sudden financial crisis resulting from the untimely death of the breadwinner and cannot be claimed as a matter of inheritance or vested entitlement. The same principle was reiterated in State Bank of India v. Raj Kumar, (2010) 11 SCC 661, wherein it was held that compassionate appointment can only be granted in accordance with the governing scheme and no direction for appointment can be issued dehors the scheme. Likewise, in Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412, the Hon'ble Supreme Court observed that although compassionate appointment must conform to the applicable rules, the provisions of the scheme deserve to be construed in a manner that advances the object of providing relief to the bereaved family. The principles governing compassionate appointment were comprehensively restated in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617, wherein it was reiterated that compassionate appointment constitutes an exception to the normal method of recruitment and has to be regulated by the governing statutory scheme. Similar reiteration is found in State of Himachal Pradesh v. Shashi Kumar, (2019) 3 SCC 653, where the Hon'ble Supreme Court again emphasized that compassionate appointment is only a welfare measure intended to mitigate immediate hardship and cannot be treated as a mode of public employment.

Thus, the legal position that emerges is that while compassionate appointment cannot be claimed as a matter of right, the authorities entrusted with the responsibility of considering such claims are equally under an obligation to examine every case objectively in the light of the governing statutory provisions and the underlying purpose of the scheme. The discretion vested in the competent authority is required to be exercised upon relevant considerations and not on assumptions or extraneous factors. A beneficial scheme framed to alleviate hardship cannot be rendered illusory by adopting a hyper-technical interpretation which frustrates the very object sought to be achieved.

Tested on the aforesaid principles, a careful perusal of the impugned Government Order dated 23.11.2023 demonstrates that the respondents have failed to address the controversy in its correct legal perspective. Although the order extends over several pages and records the factual background in considerable detail, the decision-making process reflected therein does not indicate due application of mind either to the earlier judgment rendered by this Tribunal or to the statutory provisions governing the applicant's claim. The reasoning ultimately proceeds substantially on the very grounds which had already been examined during the earlier round of litigation.

At the outset, it deserves notice that while deciding T.A. No.66/2022, this Tribunal had categorically held that SRO-255 of 2016 could not be applied retrospectively to the applicant's case, since his application for compassionate appointment had admittedly been submitted much prior to the promulgation of the said amendment. The Tribunal had further observed that the applicant's claim was required to be reconsidered under the scheme which was in force at the time when his application was submitted. It was precisely for this reason that the earlier rejection order dated 17.05.2017 was quashed and the matter remitted for fresh consideration by means of a detailed and reasoned order.

The relevant observations made by this Tribunal in paragraphs 13 to 16 of the judgment dated 04.09.2023 read thus:

case of the 3 rd respondent that the applicant had given the representation in 2010. No doubt, that was beyond the period prescribed to file the application as provided in the first proviso to Rule 3 of SRO 43/1994. It is stated that at that time the applicant was a minor. Of course the moot consideration is the immediacy of granting employment assistance. The compassionate appointment is intended for tiding over the crisis caused due to sudden demise of the bread winner of the family. Of course if the family could tide over the crisis somehow and pull on, that is a valid ground for rejecting the plea. But such aspects cannot be inferred from Annexure-F.

The aforesaid findings have admittedly attained finality.

The respondents have not questioned the said judgment before any superior forum. Consequently, the findings recorded therein became binding inter partes and the respondents were under a legal obligation to faithfully implement the directions contained therein. The law is well settled that orders and directions issued by a competent Court are binding upon the parties unless

modified or set aside by a superior forum. Judicial discipline mandates scrupulous adherence to such directions. The respondents, therefore, could not have reopened an issue which already stood concluded by the earlier judgment. Their action in once again rejecting the claim substantially on the very grounds which had already been disapproved is clearly inconsistent with the doctrine of finality and judicial discipline. Reference in this regard may be made to East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 1893, Union of India v. Kamlakshi Finance Corporation Ltd., 1992 Supp (1) SCC 443, and Bhopal Sugar Industries Ltd. v. Income Tax Officer, AIR 1961 SC 182, wherein the Hon'ble Supreme Court held that authorities exercising statutory powers are bound to faithfully implement binding judicial decisions.

A careful reading of the impugned Government Order, however, reveals that despite noticing the earlier judgment, the respondents have once again proceeded to

examine the applicant's claim substantially with reference to SRO-255 of 2016 and have ultimately concluded that since the applicant was the brother of the deceased police constable, he did not fall within the categories contemplated under the amended provisions. Such reasoning, in the considered opinion of this Tribunal, runs contrary to the very foundation of the earlier judgment. Once this Tribunal had categorically held that SRO-255 of 2016 was inapplicable to the applicant's case, the respondents could not indirectly achieve what they were precluded from doing directly. The reconsideration ought to have been confined to the statutory scheme applicable on the date when the applicant's claim was originally made.

Equally significant is the fact that the impugned order proceeds on the assumption that the applicant is not entitled to invoke the benefit of the scheme without examining whether he answered the description of a "family member" under the unamended provisions of

SRO-43 of 1994. Clause (d) of the Explanation appended to Rule 2 specifically included, inter alia, a dependent brother within the expression "family". Despite specific pleadings that the applicant was wholly dependent upon the deceased employee and was admittedly a minor at the relevant point of time, the respondents have recorded no finding whatsoever disputing such dependency. The conclusion denying the applicant the benefit of the scheme is therefore unsupported by any objective consideration of the relevant statutory provision.

Another aspect which assumes considerable significance is that the respondents have rejected the applicant's claim principally on the premise that the application had been submitted beyond the prescribed period of one year. However, the impugned order is conspicuously silent regarding the exercise of power vested in the competent authority under Rule 7 of SRO-43 of 1994, which specifically enables relaxation of the conditions relating to age, educational qualification and limitation in deserving

cases. Once such discretionary power is statutorily conferred, the competent authority is under a legal obligation to consider whether the facts of the case warrant its exercise. The order under challenge neither advertises to Rule 7 nor records any reason for declining to invoke the said provision.

The omission assumes greater significance in view of the admitted fact that the applicant was a minor when his brother lost his life in the militant attack. The respondents have nowhere disputed either the applicant's date of birth or his minority at the relevant time. Once that factual position stood admitted, the competent authority was required to examine the legal consequences flowing therefrom instead of rejecting the claim solely on the ground of delay. The minority of a dependent is undoubtedly a relevant circumstance which required due consideration while examining the question of limitation and relaxation under the governing scheme.

Support for this view is also available from the judgment

of the Hon'ble High Court of Jammu & Kashmir and Ladakh in Bilal Ahmad Dar v. Union Territory of J&K, W.P.(C) No.2550/2021, wherein the Hon'ble High Court held that where the dependent was a minor at the time of the death of the Government employee, the claim was required to be examined in the light of the statutory scheme after the dependent attained the requisite age and qualification. The Hon'ble High Court also noticed that the authorities themselves had processed the claim for several years and ultimately held that the plea of limitation raised by the respondents could not be sustained in the facts of the case. The said judgment lends further support to the conclusion that the applicant's minority and the prolonged administrative consideration were relevant factors which the respondents were bound to examine while deciding the applicant's claim.

**36.**The Hon'ble Supreme Court in Sushma Gosain v. Union of India, (1989) 4 SCC 468, emphasized that claims for compassionate appointment should ordinarily be

considered with promptitude, having regard to the object of providing immediate relief to the bereaved family. Where the dependent was a minor at the relevant time, the competent authority is required to examine the claim keeping in view the peculiar facts of the case and the governing scheme, instead of rejecting the claim mechanically on technical grounds. The admitted minority of the applicant, therefore, constituted a relevant circumstance requiring due consideration while examining the question of limitation and relaxation under the applicable Rules.

It is equally significant to notice that the applicant was about 18 years of age when he first approached the authorities by submitting his claim for compassionate appointment. The record further reveals that despite the matter remaining under consideration before the respondents, no final decision was taken for several years and the litigation has continued till date. As on the date of adjudication of the present Original Application, the applicant is approximately 35 years of age. The prolonged lapse of time, therefore, cannot be attributed entirely to the applicant. A substantial part of the delay has occurred during the pendency of consideration before the respondents themselves and thereafter on account of prolonged litigation. The respondents could not, therefore, legitimately reject the applicant's claim solely by relying upon the passage of time when such delay was, to a considerable extent, occasioned by the administrative process itself.

It is trite that where a statute or statutory scheme confers discretionary power, such discretion must be exercised on relevant considerations by assigning reasons. Failure to consider an enabling provision conferring discretion vitiates the decision-making process. The requirement of recording reasons has repeatedly been emphasized by the Hon'ble Supreme Court in Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, wherein it was held that reasons constitute the heartbeat of every administrative and quasi-judicial decision and ensure fairness, transparency and accountability. The absence of any discussion regarding Rule 7 clearly demonstrates that a relevant statutory consideration has altogether escaped the attention of the competent authority.

**39.**The respondents have also proceeded on the assumption that the compassionate element has ceased merely because more than two decades have elapsed since the death of the employee. Such conclusion, however, has been recorded without any objective assessment whatsoever of the financial condition of the family, its continuing dependence, or the circumstances in which the applicant could not approach the authorities earlier owing to his minority. Mere passage of time, by itself, cannot automatically extinguish financial hardship. Whether the compassionate element survives is essentially a question of fact requiring objective consideration of the material available on record. No such exercise is discernible from the impugned order.

This Tribunal is, therefore, satisfied that the decision-making process suffers from patent non-application of mind. Relevant statutory provisions have remained unconsidered, binding directions issued by this Tribunal have not been faithfully implemented, irrelevant considerations have influenced the ultimate conclusion, and material issues requiring objective determination have altogether been omitted from consideration. The impugned Government Order, therefore, cannot withstand judicial scrutiny.

Consequently, Government Order No.570-Home of 2023 dated 23.11.2023 is set aside. The respondents are directed to reconsider the claim of the applicant de novo, strictly in accordance with the Jammu and Kashmir Compassionate Appointment Rules, 1994, as applicable on the date of submission of the applicant's claim, and in the light of the observations made hereinabove as well as those contained in the judgment dated 04.09.2023 passed in T.A. No.66/2022, by passing a fresh, reasoned and speaking order within a period of eight weeks from the date a certified copy of this order is made available to them.

While undertaking the aforesaid exercise, the competent authority shall specifically examine: (i) whether the applicant fulfilled the requirement of dependency under the definition of "family" contained in SRO-43 of 1994; (ii) the effect of the applicant's minority on the question of limitation; (iii) the applicability of Rule 7 relating to relaxation of age, educational qualification and limitation, recording specific reasons in case relaxation is declined; (iv) the actual financial condition of the applicant's family instead of proceeding on presumptions; and (v) the binding effect of the earlier judgment dated 04.09.2023, which has admittedly attained finality.

The Original Application is accordingly allowed in the above terms. There shall be no order as to costs.

Pending miscellaneous application(s), if any, shall also stand disposed of.

Registry shall consign the record to the Record Room after due completion.