Showkat Ahmad Lone vs State Of J&K & Ors
2021 Latest Caselaw 1577 j&K/2

                        IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                            AT SRINAGAR



                                                                              Reserved on:26.11.2021
                                                                           Pronounced on: 07.12.2021

                                                     LPA No.151/2019


                        Showkat Ahmad Lone                              ... Appellant(s)

                                                     Through: Mr. Hilal Ahmad Wani, Advocate
                                        Vs.

                        State of J&K & Ors.
                                                                        ...Respondent(s)


                                                     Through: Ms. Asifa Padroo, AAG
                        CORAM:

                        HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
                        HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                                     JUDGMENT

Sanjay Dhar, 'J'

1) Appellant-writ petitioner has challenged judgment and order

dated 05.04.2019 passed by the Writ Court in SWP No.86/2017,

whereby, the writ petition, seeking a direction to consider the

petitioner's placement to the position of Forester from the date he

was appointed to the position of Forest Guard on compassionate

basis, has been dismissed.

2) The case of the appellant-writ petitioner before the Writ

Court was that upon death of his father in harness, he was appointed

as a Forest Guard vide Forest Order No.128 of 2006 dated SARVEEDA NISSAR 2021.12.08 10:24 I attest to the accuracy and 26.06.2006 on compassionate basis in terms of SRO 43 of 1994, the integrity of this document

Jammu and Kashmir (Compassionate Appointment) Rules, 1994. It

was contended by the writ petitioner that at the relevant time he was

holding qualification of 10+2 and, as such, in terms of Rule 3 of

SRO 43 of 1994 he was entitled to be appointed on higher post of

Forester and not on the post of Forest Guard. It was urged by the

writ petitioner that after joining as Forest Guard, pursuant to his

appointment vide order dated 26.06.2006, he made a representation

before respondent No.2 on 19.07.2007, but the same was not

considered by the respondents. The writ petitioner was promoted to

the post of Deputy Forester in terms of Forest Order No.281 of 2012

dated 20.10.2012 and thereafter in the year 2016 he again made a

representation to the respondents for redressal of his grievance. The

same is stated to have been rejected by respondent No.3 in terms of

Communication No.CCF(K)Adm/2016/3945-46 dated 21.12.2016.

3) The aforesaid action of the respondents was challenged by

the writ petitioner primarily on the ground that because of his higher

qualification he was entitled to be appointed as a Forester and that in

certain other similarly situated cases appointments to the posts of

Forester on compassionate basis have been made by the

respondents.

4) The writ petition came to be dismissed by the Writ Court

vide impugned judgment dated 05.04.2019 on the grounds that the

petitioner has no statutory right for appointment to a higher post and

that the petitioner having accepted his appointment to the post of

SARVEEDA NISSAR LPA No.151 of 2019 2021.12.08 10:24 I attest to the accuracy and integrity of this document

Forest Guard and having remained silent for a number of years, has

waived his right to seek appointment to a higher post.

5) The appellant has challenged the aforesaid judgment of the

Writ Court on the ground that as per Rule 3(1) of Jammu and

Kashmir Compassionate Appointment Rules, 1994 he was entitled

to be appointed on a higher post on account of his higher

qualification, which fact, according to the appellant, has been

ignored by the learned Writ Court. It has been further contended

that the writ petitioner has throughout the period of his service

agitated his right for being appointed on the higher post by filing

representations in the year 2007 as well as in the year 2016, as such,

it cannot be stated that he has waived his right to seek appointment

to the higher post. It is finally contended that the learned Writ Court

while passing the impugned judgment has ignored the ratio laid

down by this Court in Vishiv Deep Singh v. State of Jammu and

Kashmir and Others 2017(1) SLJ page 110.

6) We have heard learned counsel for the parties and perused

the record.

7) Certain facts which emerge from the record and which are

not in dispute are required to be noticed. The appellant-writ

petitioner was appointed as a Forest Guard on compassionate basis

in terms of Forest Order No.128 of 2006 dated 26.06.2006 upon the

death of his father. He joined the service and continued to function

as such until he was promoted as Deputy Forester in the year 2012.

SARVEEDA NISSAR LPA No.151 of 2019 2021.12.08 10:24 I attest to the accuracy and integrity of this document

The writ petitioner filed a representation before respondent No.2

urging that he may be given appointment as Forester from the date

he was appointed as Forest Guard as similar treatment has been

given to certain other persons. The representation was submitted by

the writ petitioner in the year 2016 and the same was not entertained

by respondent No.3 on the ground that the claim of the writ

petitioner is stale.

8) It has been vehemently urged by learned counsel for the

appellant that the writ petitioner was all along agitating and urging

his claim before the respondents but they were not considering the

same. In this regard learned counsel for the appellant has referred to

representation stated to have been made on 19.07.2007. Although

there is nothing on record of the Writ Court to even remotely

suggest that the aforesaid representation was actually received in

any of the offices of respondents, yet even if it is assumed that the

said representation was received by the respondents still then the

fact that the writ petitioner continued to remain satisfied with his

appointment as a Forest Guard for about next more than ten years

clearly indicates that he had waived his claim as regards

appointment to the higher post. It is only in the year 2016 that the

appellant-writ petitioner woke up from the deep slumber and made a

representation before the respondents which was promptly declined

by them by terming it a stale claim.

SARVEEDA NISSAR         LPA No.151 of 2019
2021.12.08 10:24
I attest to the accuracy and
integrity of this document





                               9)     The remedy provided by the Constitution of India under

Article 226 is discretionary in nature and the High Court in exercise

of its discretion does not ordinarily come to the rescue of an

indolent and lethargic litigant. There is inordinate delay of more

than 10 years in filing the writ petition which has not been explained

by the writ petitioner satisfactorily. He, therefore, could not have

been permitted a belated resort to extra ordinary jurisdiction of the

High Court.

10) In view of the above conduct of the appellant, we are of

the opinion that the Writ Court has rightly observed that the writ

petitioner has waived his right to seek direction for appointment to a

higher post and as such his claim cannot be entertained. We are

supported in our aforesaid view by the judgment of the Supreme

Court in case of State of Rajasthan v. Umrao Singh (1994) 6 SCC

560. Para 8 of the Judgment is relevant to the context and the same

is reproduced as under:-

8. Admittedly the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. The respondent filed an application on 8-4- 1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 1-12-1989.

He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion'. Eligibility to be appointed as Sub Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the

SARVEEDA NISSAR LPA No.151 of 2019 2021.12.08 10:24 I attest to the accuracy and integrity of this document

High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case."

11) From the aforesaid ratio laid down by the Supreme Court

it is clear that once a person is appointed to a particular post on

compassionate basis and he has accepted the same without any

demur it would not be open to such person to seek appointment on

higher post on the ground that he is eligible to be appointed to a

higher post. The case of the writ petitioner is squarely covered by

the aforesaid ratio and, as such, there is no merit in the contention of

the learned counsel for the appellant in this regard.

12) The appellant has contended that he has a statutory right to

be appointed to a higher post in view of Sub Rule (1) of Rule 3 of

SRO 43 of 1994. The aforesaid provision, as it existed prior to its

amendment effected vide SRO 201 dated 04.06.2007, provided that

an eligible family member of a person may be appointed on the

lowest rank of non-gazetted service having qualification above

Matriculation or to class IV post if the candidate has read up to

Matric. The appellant contends that because he was holding

qualification of 10+2 which is higher than Matric, therefore, he

should have been appointed against the vacancy of lowest rank of

non-gazetted service and not to a class IV post. In this regard the

appellant has relied upon the ratio laid down by a Division Bench of

this Court in Vishiv Deep Singh's case (supra).

SARVEEDA NISSAR         LPA No.151 of 2019
2021.12.08 10:24
I attest to the accuracy and
integrity of this document





                               13)         The aforesaid contention of the appellant is fallacious for

the reason that he has in-fact been appointed to the lowest rank of

the non-gazetted service of the Forest Department which happens to

be the post of Forest Guard. As per Schedule II of Forest

(Subordinate) Service Recruitment Rules, 1991, the post of Forest

Guard falls in the lowest rank of non-gazetted service, whereas, the

posts of Sr. Lab. Attendant, Mali, Lab. Attendant etc. fall under

class IV category. So the writ petitioner has been rightly appointed

to the post of Forest Guard which is the lowest post in the non-

gazetted category of Forest department. The post of Forester is not

the lowest post in the non-gazetted category of the Forest

Department. Therefore, he could not have been appointed to the said

post, even in terms of the rules in vogue at the relevant time.

14) Apart from what is stated herein before, the appellant did

not possess the requisite qualification for being appointed as a

Forester. As per Forest (Subordinate) Service Recruitment Rules,

1991, the minimum qualification for direct recruitment to the post of

Forester is 10+2 or equivalent qualification with science subjects.

Admittedly, the writ petitioner has acquired 10+2 qualification with

Arts subjects. Thus, he was not qualified to be appointed as a

Forester. The Supreme Court in the case of I.G.(Karmik) and

Others v. Prahalad Mani Tripathi (2007) 6 SCC 162 has clearly laid

down that a person cannot be appointed on the post even on

compassionate basis unless he fulfills the eligibility criteria. Thus,

SARVEEDA NISSAR LPA No.151 of 2019 2021.12.08 10:24 I attest to the accuracy and integrity of this document

the claim of writ petitioner for his appointment to the post of

Forester is not tenable in law. So far as the contention of the

appellant, that the ratio laid down by this Court in Vishiv Deep

Singh's case has been ignored by the Writ Court is concerned, the

same appears to be without any merit, because the ratio laid down in

the said case is not applicable to the facts of instant case.

15) In Vishiv Deep Singh's case this Court on the basis of

interpretation of rule 3 of SRO 43 of 1994 had concluded that a

person possessing a higher qualification is entitled to be considered

for appointment on compassionate basis to the lowest post in the

non-gazetted rank and on that basis the Division Bench directed

consideration of the case of petitioner therein for his appointment to

a higher post, though the petitioner had been appointed on a class IV

post. The facts of the said case are distinguishable, inasmuch as in

the said case the writ petitioner had immediately after his

appointment on a lower post made a representation before the

competent authority which was rejected and he promptly

approached the Writ Court. In the instant case there is a huge delay

of more than ten years in approaching the Writ Court which has

remained unexplained. Not only this, in the instant case, the writ

petitioner is not even qualified to be considered for the post of

Forester which he is claiming. Apart from this, the writ petitioner in

this case has not been appointed to Class IV post but he has been

SARVEEDA NISSAR LPA No.151 of 2019 2021.12.08 10:24 I attest to the accuracy and integrity of this document

appointed to lowest post in non-gazetted rank to which he was

entitled.

16) Lastly it has been argued by learned counsel for the

appellant that in similar circumstances certain other persons have

been appointed as Foresters and to quote an example he has

mentioned the case relating to respondent No.4. Even if it is

accepted that the official respondents have appointed certain persons

directly as Foresters on compassionate basis, still then the same

cannot from a precedent. Any such action taken by the official

respondents is dehors the rules and as such cannot form a basis for

seeking similar relief by others. The Supreme Court in the case

Chandigarh Administration and Anr. v. Jagjit Singh and Anr. 1995

(1) SCC 745, has observed that parity cannot be claimed in respect

to cases relating to appointment on compassionate grounds and if

appointment is made the same cannot be used as precedent and that

the Supreme Court or the High Courts cannot pass directions to

State Authorities to appoint a person on higher post. Para 8 of the

judgment is relevant to the context and the same is reproduced as

under:-

"8...Generally speaking the mere fact that the respondent-

authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not

SARVEEDA NISSAR LPA No.151 of 2019 2021.12.08 10:24 I attest to the accuracy and integrity of this document

warranted in the facts and circumstances of his ease, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order....In other words, the High Court cannot ignore the law and the well accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant, legal principles. The orders and actions of the authorities cannot be equated to the judgements of the Supreme Court and High Courts nor can they be elevated to the level of the precedent as understood in the judicial world."

17) From the aforesaid ratio laid down by the Supreme Court

it is clear that an action of the State and its authorities which is

dehors the rules cannot be elevated to the level of a precedent. Thus

the writ petitioner cannot claim parity with respondent No.4 or some

other persons who may have been directly appointed as Foresters in

derogation of the rules holding the field.

18) For the fore going discussion, we do not find any merit in

this appeal. Accordingly the judgment of the writ Court is upheld

and the appeal is dismissed.

                                          (SANJAY DHAR)                      (SANJEEV KUMAR)
                                                JUDGE                                  JUDGE

                        SRINAGAR
                        07.12.2021
                        Sarveeda Nissar

                                         Whether the order is speaking: Yes/No
                                         Whether the order is reportable: Yes


SARVEEDA NISSAR         LPA No.151 of 2019
2021.12.08 10:24
I attest to the accuracy and
integrity of this document