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Judgment
Per Hon'ble Mr. M.S. Latif, Member (JudL)
Through the medium of the instant OA, applicant seeks following reliefs:-
“(i)Call for the records.
(ii)Quashing/setting aside the Order No.4213/2022 dated 15.12.2022 of Respondent No.2 rejecting/turning down the Application of the Applicant for appointment on compassionate grounds under SRO-43 of 1994 on alien, irrelevant and extraneous grounds therefore, void ab-initio and non-est in law;
(iii)Command/direct Respondents in particular Respondents 2 to 6 to treat non-est in law, the impugned Order No.4213/2022 dated 15.12.2022 of Respondent No.2 rejecting/turning down on irrelevant extraneous thus non-existent ground the Application of the Applicant for appointment on compassionate grounds under SRO-43 of 1994;
(iv)Command/direct/Respondents in particular Respondent No.2 to 6 to desist, refrain and forbear from giving effect to and/or proceeding in furtherance to impugned Order No.4213/2022 dated 15.12.2022 of Respondent No.2 in any manner prejudicial to the constitutionally guaranteed right of the Applicant to Compassionate Appointment under Rule 4 of Compassionate Appointment rules, 1994;
(v)Command/direct Respondents in particular Respondent No.2 to 6 to reconsider in due discharge of the obligations rather duty enjoined on the Respondents in particular Respondents 2 to 6 under and in terms of the mandate of the Judgment and Order of this Hon'ble Tribunal dated 22.07.2022, in particular the findings of the facts returned therein, qua the entitlement of the Applicant to appointment on compassionate grounds under Rule 4 of Compassionate Appointment Rules 1994, for appointment as Follower in the Respondent Police Department, and on such reconsideration the Applicant be offered appointment as Follower in the Respondent Police Department and if need be in relaxation of rules, being fully justified and warranted in the attendant facts and circumstances of the case;
(vi)Command/direct the respondents in particular Respondent No.2 to 6 to admit the Applicant to all the consequential service benefits accruing due in law on such appointment as Follower in the Respondent Police Department;
Pass such Order or Direction that this Hon'ble Tribunal deems just and proper to pass/issue in the interests of justice in the attendance facts and circumstances of the case.
(viii)That the cost of the litigation be also awarded to Applicant."
Alongside the main relief, the applicant also prays for interim relief for staying the operation and implementation of impugned Order No.4213/2022 dated 15.12.2022 of Respondent No.2 being non-est in law.
The brief facts of the case of the applicant, as pleaded in the OA, are as under:-
The brother of the applicant namely, Late Farhad Hussain Malik, who was working as a constable in IRP 20th Battalion, while performing routine duty met with road accident on 09.02.2014 and succumbed to his injuries at SKIMS, Soura, Srinagar.
The applicant, being eligible under Rule 2(1) read with explanation appended thereto, and Rule 4 of the Compassionate Appointment Rules, submitted application well in time to the competent authority with supporting material for consideration for appointment on compassionate grounds against suitable Class-IV Post. The applicant reproduced the rule 2(1) and Rule 4 of the Compassionate Appointment Rules as under:-
2.Application of rules: These rules shall apply to the compassionate appointment of a person who is a family member of:
(i)a Government employee who dies in harness other than due to militancy related action;
Explanation: For purposes of these rules.
(a)...
(d)'Family Member means spouse, son, daughter, adopted son, adopted daughter, sister or brother *[xx] dependent on the deceased.
4- Appointment cases of death in harness:- Appointment under these rules in respect of a family member of a Government employee who dies in harness due a cause other than militancy related action shall be made by Head of the Department concerned:
Provided that:-
i)Where no post is available in the office or subordinate offices of the Head of the Department, the proposal for appointment shall be submitted to the Administrative Department concerned and where there is no post available in the Administrative Department concerned also, the case shall be referred to the General Administration Department for appointment of the candidate in any other Department; or
ii) Where any such appointment is to be made in relaxation of rules, such cases shall be submitted to the General Administration Department in coordination."
It is submitted by the applicant that Rule 5 of the Compassionate Appointment covers cases other than those falling under Rule 4 of the Compassionate Appointment Rules, and to vindicate this stand and submission Rule 5 is extracted hereunder for the convenient appreciation of the Tribunal:-
5.Appointment in other cases:-(1) Appointment under these rules in respect of a member of the family of a Government employee or a civilian who has died as a result of militancy related action or in respect of a family member of the officer or armed force or Para-military force, shall be made by the *[Deputy Commissioner concerned] in accordance with the procedure hereinafter prescribed.
(2)A family member of **a civilian who dies as a result of militancy related action may apply for appointment against any suitable vacancy to the Deputy Commissioner of the District in which he or she resides. *[Deputy Commissioner after making such enquires as may be necessary and on recommendations of the District Level Coordination-Cum-Screening Committee, may issue appointment orders for his or her adjustment against a vacancy in the District concerned in any Department under the Government in accordance with provisions of rule 3 hereinabove: ***Provided that in the case of a SPO engaged by the Police Department who dies as a result of militancy related action, a family member may apply for appointment against a vacancy to the Director General of Police who, after conducting such enquires as may be required, may issue an appointment order for his/her adjustment in the Police Department in accordance with the provisions of rule 3."
***2(a) A family member of Government employee who dies as a result of militancy related action may apply for appointment against any post to which he or she is entitled under these rules to the Deputy Commissioner of the District in which he or she resides. Deputy Commissioner shall after making such enquires as may be necessary, and, on clearance by the District Level Coordination-Cum-Screening Committee, forward the case of the applicant to the Head of the Government Department administering the services or cadre to which the deceased employee belonged. The Head Government Department may make the appointment in accordance with provisions of rule 3 and rule 4 of these rules. All pending cases shall be dealt with accordingly."
(3)** A family member of a deceased member of armed force or paramilitary force who is eligible for appointment under these rules may apply against for appointment against a suitable vacancy to the Deputy Commissioner concerned through the Commanding Officer of the Unit in which the deceased member of the armed force or Para-military force was last serving. The Deputy Commissioner after making such enquiries as may be necessary and on the recommendations of the District Level Coordination-Cum-Screening Committee, may issue appointment orders for his or her adjustment against a vacancy in the District concerned in any Department under the Government in accordance with provisions of rule 3 hereinabove."
Vide communication bearing No.Home/SRO-43/169/2015/4350 dated 08.08.2016, respondent's department informed the applicant that his case is not covered in terms of SRO-177 dated 20.06.2014 as the applicant has failed to apply within a period of one year. Being aggrieved of the said communication, the applicant approached the Hon'ble High Court through the medium of Writ Petition (SWP No.2075/2018) impugning/challenging the aforementioned action of the Respondents (Annexure-A-2). The Hon'ble High vide order dated 07.09.2018 disposed of the writ petition. The operative portion of the order of the Hon'ble High Court is reproduced as under:-
"In view of the aforesaid statement of the learned counsel for the applicant, the writ petition is disposed of with a direction to the respondents to treat the same as representation on behalf of the applicant and accord consideration to the claim of the applicant in light of p.14, as projected in the writ petition. Needful, on the part of the respondents, to be done in accordance with the rules governing the field within a period of four weeks from the date of the Certified copy of this order along with the writ petition with all its annexures is made available to them by applicant." Writ petition, along with connected MP(s) disposed of as above."
On being served with the copy of the Order of the Hon'ble High Court dated 07.09.2018, the respondents, vide Order No.GB/SRO-Appt/IR-20th/18/5206-08 dated 21.12.2018 informed the applicant that his compassionate appointment case under SRO-43 is not covered under SRO-376 of 2017 dated 11.09.2017 being the brother of the deceased (Annexure-A-4).
Being aggrieved of the said order dated 21.12.2018, the applicant preferred Writ Petition (SWP No.268/2019) and consequent upon re-organization of the State of Jammu and Kashmir into Union Territory of Jammu and Kashmir, the Writ Petition of the applicant came to be transferred to the files of this Hon'ble Tribunal for disposal in accordance with law and was re-registered as T.A. No.2148/2020. This Tribunal, vide order dated 22.07.2022, allowed the TA and set aside the order dated 21.12.2018 passed by the respondents. The operative part of the order of the Tribunal reads as under:-
"7.The prime object of the appointment on compassionate ground is to help the family members of the deceased who were dependent on him financially. In other words the policy of the State is to render financial assistance to the family of the deceased after the untimely death of the sole bread earner. Hon'ble Supreme Court in a recent judgment dated 20.5.2022 in Malaya Nanda Sethy -vs- State of Orissa [Civil Appeal No.4103/2022] has held that the state should finalize the cases of compassionate appointment within six months from the date when application to such appointment is made by the legal heirs of the deceased. Hon'ble Supreme Court has held as follows:-
"If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases which are nearly two decade the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved."
8.In view of the above the impugned order dated 21.12.2018 is set aside. Respondents are directed to consider the applicant for appointment on compassionate grounds under SRO 43/1994, if he is otherwise found eligible for the post of Follower in the Police Department. This exercise shall be completed within 2 months from today."
In view of the order passed by the Tribunal dated 22.07.2022, the respondents vide Order No.4213 of 2022 dated 15.12.2022 turned down/rejected the case of the applicant for compassionate appointment (Annexure-A-1).
Against the rejection order dated 15.12.2022, the applicant filed contempt petition No.209/2022. But the contempt petition preferred in the matter did not find favour with this Hon'ble Tribunal and was dismissed vide order dated 06.12.2023.
Per contra, respondents have filed their reply/objections and have submitted as under:-
It is submitted by the respondents that the applicant has approached this Tribunal with unclean hands and deliberately suppressed the material facts.
It is submitted that the Constable Farhad Hussain Malik No.498/IR-20 Bn. PID-ARP-094786 (deceased) was appointed as Constable in the year-2009. On 09.02.2014, the said constable sustained serious injuries in a road accident at Wayl, Ganderbal and later on succumbed to his injuries at SKIMS Srinagar. In this regard, a case FIR No.13/2014 u/s 279, RPC was registered at Police Station Ganderbal.
Thereafter, Mohd Sadiq Malik, the applicant herein, brother of the deceased Constable approached the Commanding Officer, IRP-20th Bn on 04.03.2015 along with legal heir certificate and supporting documents for processing his case for compassionate appointment under SRO-43 of 1994, in lieu of death of his brother. The case of the applicant for appointment on compassionate ground was processed by the Commanding Officer IRP-20th Bn duly forwarded by ADGP Armed J&K to Police Headquarter for his compassionate appointment under SRO-43 of 1994. Accordingly, the case was forwarded to the Home Department vide PHQ letter No Pers-A-150/2015/58677-79 dated 13.10.2015. The Home Department vide its communications dated 22.12.2015 and 08.08.2016 conveyed that the case had been referred to the General Administrative Department (GAD) for relaxation of qualification, however, the GAD returned the case with the remarks that the applicant's claim was time-barred, as it was not submitted within the prescribed period of one year and hence, not covered under SRO-177 dated 20.06.2014. After promulgation of SRO-376 of 2017 dated 11.09.2017. the case of the applicant was re-submitted to the Home Department for consideration of appointment as Follower in J&K Police, with a request for relaxation of rules regarding time limitation and educational qualification. However, the Home Department, vide letter No Home/SRO-43/169/2015 dated 27.11.2018 conveyed that the case of the applicant was not covered under SRO-376 dated 11.09.2017, as the applicant being the brother of the deceased did not fall within the eligible category defined therein. Accordingly, the Additional Director General of Police (ADGP) Armed was advised to inform the applicant vide Headquarters communication dated 08.12.2018.
Aggrieved by the rejection of his claim, the applicant approached the Hon'ble High Court of Jammu and Kashmir through the medium of SWP No.268/2019 titled Mohammad Sadiq Malik, which was later transferred to Hon'ble Central Administrative Tribunal (CAT) Srinagar and renumbered as TA No. 2148/2020. This Tribunal vide its order dated 22.07.2022, directed the respondents to "consider the applicant for appointment on compassionate ground under SRO-43/1994, if he is otherwise found eligible for the post of Follower in the Police Department."
In compliance with the aforesaid directions, the case of the applicant was examined at Police Headquarter with reference to available records during scrutiny, it came to fore that the case of the applicant was duly processed and forwarded to Home Department from time to time. However, the case was turned down by the competent authority at the relevant point of time being brother of the deceased and does not fall under the relevant provisions of SRO-376 of 2017 dated 11.09.2017 added to the Jammu and Kashmir Compassionate Appointment Rules, 1994, which clarifies that, "Notwithstanding anything contained in proviso first and second of sub-rule (1) of rule 3 of these rules, the widow (who has not re-married), unmarried son and unmarried daughter of a deceased Police Personnel who has died in harness may be considered for appointment under these rules by the General Administration Department, on a case to case basis, in the Police Department only, subject to the all pre-requisite formalities".
In light of enumerated facts and circumstances of the case, it was observed that the application of the applicant was found untenable and was accordingly rejected on merits vide PHQ Order No.4213 of 2022 dated 15.12.2022. The applicant did not satisfy the basic eligibility conditions prescribed under SRO-43 of 1994 read with SRO-376 of 2017, and therefore, could not be considered for compassionate appointment. It is thus respectfully, reiterated that the claim of the applicant was rejected strictly in accordance with the rules, after due consideration and examination at the level of Police Headquarter, Government Home Department and General Administration Department, as the applicant did not meet the prescribed norms/criteria. Hence, the claim of the applicant was rightly rejected as he does not fulfill the prescribed standards and eligibility conditions under SRO-43 of 1994 read with SRO-376 of 2017.
Written submission has been filed by the learned counsel for the applicant wherein he has reiterated the same as pleaded in the OA.
Heard the learned counsel for the parties at length, perused the contents of the OAs and annexures on file and also the written submission filed by the applicant.
Even otherwise law is no more res-integra, the right to get compassionate appointment is not a vested right, which can be exercised anytime by anybody. Reference is made to the judgment in the case titled as Haryana State Electricity Board vs Naresh Tanwar [(1996) 8 SCC 23]. It is also apt to mention here that compassionate appointment is neither a hereditary right, nor it can be bequeathed. Reference is also made in the judgment titled as Srikant vs. Chief Engineer Karnataka Electricity Board [1996 1 SLR 118], as also in the case of Aashiq Hussain Shah vs. State and Another [2007 SriLJ 614]. The applicant cannot claim compassionate appointment in terms of Rule 2(1)(d) and Rule 4 of the J&K Compassionate Appointment Rules, 1994 as compassionate appointment can be made only for the dependent member of the family of the concerned employee read with SRO 376 of 2017. Even otherwise, the claim of the applicant for appointment on compassionate grounds is not based on the premise that he was dependent on the deceased employee. As such, his claim cannot be upheld on the touchstone of Article 14 & 16 of the Constitution of India. It is also the mandate of law that while dealing with the case of compassionate appointments, it must be established that the case falls within the scope of law and it is fortified by the judgment titled as LIC vs. Asha Ramchandra Ambekar [1994 (2) SCC 718].
In view of the above, no case is made out. Accordingly, OA No.536/2014 is dismissed. No order as to costs.