Kirti Sharma vs State Of J&K And Others

Rajesh Bindal, J

The petitioner, who was 45 years of age when the present petition was filed in the year 2016, challenged the order dated 11.10.2013 whereby her claim for compassionate appointment on a higher post, was rejected.

The facts of the case, as are evident from the record are that the petitioner, being widow of Dy. SP working with J&K Police, applied for appointment on compassionate basis, as her husband died in a car blast on 10.08.2000 at Kothi Bagh, Srinagar, while discharging his duties. Thereafter, the petitioner applied for appointment on compassionate basis.

Vide order dated 24.04.2002, she was appointed as Sub Inspector in Jammu and Kashmir Police. In pursuance to the aforesaid order, she joined her duties. About four years after joining on the said post, the petitioner made a representation seeking appointment as Dy. SP instead of Sub Inspector. However, her claim was rejected vide order dated 15.06.2006. The aforesaid order was challenged by the petitioner by filing SWP No. 877/2008 which came to be disposed of on October 20, 2011 with a direction to the respondents to re-consider the case of the petitioner in terms of the appointment made in other similar cases.

As the aforesaid direction of the Court was not implemented, the petitioner filed a Contempt Petition. Subsequent thereto, vide impugned order dated 11.10.2013, the claim of the petitioner was rejected.

It is the aforesaid order, which is impugned by the petitioner in the present petition filed in the year 2016.

Learned counsel for the petitioner submitted that the petitioner has been discriminated as in the other similar cases, the respondents had granted appointment to the one member of the family members of the deceased employee on the same post on which he/she has been working. In the case of the petitioner, her husband died during his service on 10.08.2000, hence, she could have been granted appointment on the post of Dy. SP and not as Sub Inspector. He further submitted that the impugned order has not been passed in compliance to the specific direction issued by this Court. Hence, the order impugned deserves to be set aside.

After hearing learned counsel for the petitioner, I do not find any merit in the present petition.

A perusal of the order dated 24.04.2002 vide which the petitioner was appointed as Sub Inspector on compassionate basis, shows that appointment was made in relaxation of upper age limit of 05 years, 11 months and 27 days. After the petitioner joined on the post, about four years thereafter, she filed a representation with a prayer that the petitioner should be appointed as Dy. SP, the post on which her deceased husband was working. The claim of the petitioner was rejected vide order dated 15.06.2006. Nearly two years thereafter, the petitioner filed SWP No. 877/2008 in this Court challenging the aforesaid order which came to be disposed of with a direction to the respondents to re-consider the case of the petitioner as the claim made by the petitioner was that some other appointments were made by the department on the same post on which the deceased employee had been working. However, the claim of the petitioner was rejected vide impugned order dated 15.06.2006. Thereafter, the petitioner again slept over the matter before the present petition was filed in this Court nearly three years thereafter on 02.05.2016. At the time when the present petition was filed she claimed herself to be 45 years of age. Meaning thereby she must be close to 50 years at present. The petition deserves to be dismissed on account of delay and laches. Reference for the purpose can be made to Division Bench Judgment of this Court in LPA No. 219/2019, titled as Farooq Ahmed Vs. State of J&K and others, decided on August 21, 2019.

Further a perusal of the facts which have been noticed above clearly establish that the present case has a chequered history on account of unfortunate death of the husband of the petitioner on duty, way back in the year 2000. The petitioner was offered compassionate appointment as Sub Inspector on 24.04.2002 and ever-since then the issue regarding her claim for appointment as Dy.SP is lingering on. The basic object of giving appointment on compassionate basis is to take care of the immediate needs of the family in harness on account of death of bread earner of the family. Needful was done in the case in hand immediately thereafter and the petitioner even joined on the post of Sub Inspector after she was offered appointment way back in the year 2002. At that time she did not raise any issue about the same.

It will be too late now to direct appointment of the petitioner on the post of Dy. SP from the year 2002 onwards by putting the clock back by 18 years. As a result, there would be lot of changes required in different cadres in the department. If the post of Sub Inspector was not acceptable to the petitioner, she could have raised the issue there and then and not while accepting the same, start fighting luxury litigation to claim appointment on a higher post. There is no question of discrimination involved in the present case. Even otherwise, the concept of negative discrimination is not applicable. Reference can be made to the judgment of Hon'ble Supreme Court of India in Manglam Organics Ltd. Vs. Union of India, reported as (2017) 7 SCC 221. There is nothing on record to show any order of appointment made by the department in other cases, were permissible under law or not. Or that the claim of the petitioner is tenable as per the policy framed by the then state of J&K for compassionate appointments. But equally important is the fact that the state authorities should deal with all cases in accordance with law and set and defined policy and not in a pick and choose manner, by applying the principle 'you show me face I show you Rule'. This generates avoidable litigation and generates false hope to the parties.

The arguments raised by the petitioner that her claim has not been considered by the authorities in terms of directions issued by this Court also deserves to be noticed and rejected for the reason that any order passed the court cannot be read to mean passing of an order which is contrary to law.

For the reasons recorded above, this petition is without any merit and the same is accordingly dismissed.