Sidharath Mishra vs Ut Of J&K And Others
2021 Latest Caselaw 764 j&K

                                                                 Sr. No. 103
                                                              (Suppl-I Cause list)



     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU


                                               LPA No. 76/2021
                                               CM No. 5795/2021
                                               CM No. 5796/2021


Sidharath Mishra                                   .....Appellant(s)/Petitioner(s)


                       Through: Mr. Anuj Dewan Raina, Advocate


                  Vs


UT of J&K and others                                         ..... Respondent(s)


                       Through: Mr. Ravinder Gupta, AAG vice
                                Mr. K. D. S. Kotwal, Dy. AG


Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE


                                   ORDER

28.07.2021 (Open Court)

(Per: Thakur-J)

1. The present Letters Patent Appeal has been preferred against the

judgement and order dated 24.12.2019, whereby the claim of the

petitioner/appellant herein for benefit of appointment against the higher

post in terms of Jammu and Kashmir (Compassionate Appointment) Rules,

1994, promulgated vide SRO-43 dated 2nd of February, 1994 has been

rejected.

Briefly stated, the material facts are as under:

2. Petitioner's father, who was working as Senior Assistant in the

Animal & Sheep Husbandry Department, died in harness in the year 2013.

The petitioner being eligible applied for compassionate appointment in

terms of SRO-43. The application submitted by the petitioner, keeping in

view his own qualification was for appointment as a Veterinary

Pharmacist, which was not agreed to by the official respondents in view of

the fact that the rules did not permit the appointment as such. He was,

therefore, asked to apply for the post of Junior Assistant vide

communication dated 23.02.2015. The petitioner then applied afresh and

was asked to appear in a type-test. As per the standards fixed by the official

respondents, the minimum speed required was 35 words per minute as

against the speed of 20 words per minute, which was achieved by the

petitioner.

3. The petitioner, however, as a measure of indulgence, was offered

another opportunity to clear the type-test which was conducted on

04.06.2015, which the petitioner/appellant herein says that he was unable

to take on account of his hospitalization.

4. Keeping in view the fact that the petitioner had failed to achieve

the technical standards, despite repeated opportunities, instead of the post

of Junior Assistant, he was offered appointment against the post of an

Attendant, which is a Class-IV post. The petitioner, however, submitted his

joining report without prejudice to his rights in view of the fact that he was

placing reliance upon Rule 3 of SRO-43, which for purposes of reference

is reproduced hereunder:-

"3- Appointment under these rules--(1) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or post under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of non-gazetted service or Class-IV post having qualification as prescribed under the relevant Recruitment Rules.

Provided that the applicant is eligible and qualified for such post or acquires such eligibility and qualification within a period of one year from the date of death of the deceased person specified in rule 2:

Provided further that no application for compassionate appointment under these rules shall be entertained after the expiry of one year from the date of death of the deceased person."

5. Thereafter, not being satisfied with his appointment, the

petitioner yet again filed representation dated 04.08.2015, seeking another

opportunity for sitting in the type-test. Having failed to elicit any response

on the said representation, the petitioner filed writ petition bearing SWP

No. 921/2018, which was disposed of vide judgement and order dated

29.05.2018 with a direction to the official respondents to consider the case

of the petitioner and to take a final decision on the representation made by

him.

6. A detailed order of consideration dated 12.09.2019 came to be

passed by the Principal Secretary to Government, Animal/Sheep

Husbandry Department, in which the basis for rejection was the failure of

the petitioner to qualify the type-test and further that the petitioner had

accepted the Class-IV post, therefore, could not claim higher post as a

matter of right. This order of consideration was, therefore, challenged by

the petitioner before the writ Court in WP(C) No. 4370/2019, which too

came to be dismissed vide judgement and order impugned in the present

Letters Patent Appeal.

7. Learned counsel for the appellant urged that the view expressed

by the writ Court in dismissing the petition and upholding the order of

rejection was contrary to the spirit of SRO-43 and the various judgments

on the point. It was urged that the petitioner did have a right to get

appointed against the post of Junior Assistant in view of his qualification

and the spirit of Rule 3 of SRO-43, inasmuch as, he possesses qualification

higher than matriculation.

8. Heard learned counsel for the parties.

9. It is no longer res-integra that appointment on compassionate

basis is not to be treated as an alternate source of recruitment, rather made

only with a view to prevent vagrancy, destitution and mitigate the

economic and mental stress caused on account of the untimely death of an

earning hand in the family. Various judgments on the issue reiterate this

principle time and again.

10. Equally clear is the proposition of law that if a candidate has

been given the benefit of appointment in terms of the Compassionate

Appointment Rules, then he cannot subsequently turn around and claim

that he ought to have been considered against the higher post. Learned

Single Judge in the judgment and order impugned has reiterated that

position of law in paragraph 8 of the judgment, wherein it has been held

that the petitioner having already been offered an appointment and having

joined against the post (Attendant's post) cannot turn around to claim that

he should be given appointment against the higher post, because he was a

post-graduate.

11. This is the position of law, as has been clearly enunciated in

"State of Haryana Vs Naresh Kumar Bali," reported in (1994)4 SCC

448 and "State of Rajasthan Vs Umrao Singh," reported in (1994)6 SCC

560 to the effect that once the candidate accepts an appointment on lower

post, his right to be considered on compassionate ground is exhausted and

no question of further consideration on compassionate ground would ever

arise.

12. Learned counsel for the appellant, however, urged that the

aforementioned judgments did not at all apply to the facts and

circumstances of the case, because in the present case the petitioner had

never really given up his claim for appointment against the higher post of

Junior Assistant and that even his joining report had clearly stated that it

was without prejudice to his right to claim appointment against the higher

post and therefore, the view expressed by the learned Single Judge

applying the ratio of the judgments in Naresh Kumar Bali and Umrao

Singh (supra) is inapt.

13. Assuming what is urged by learned counsel for the appellant is

accepted to the limited extent that the acceptance of appointment against

the post of attendant, with reference to the noting made by the appellant at

the time of submitting his joining report was without prejudice to his rights

and that he had actually not given up his right to seek consideration for

appointment against the higher post, yet, what is important to note here is

the fact that the petitioner was infact considered for appointment against

the post of Junior Assistant as he was asked to sit in the type-test. The

requirement to qualify the type-test was a pre-requisite, because the post of

Junior Assistant requires the ability to possess a minimum type speed,

which the petitioner failed to exhibit.

14. Another opportunity was indeed granted to the petitioner along

with similarly situate other candidates, who had opted for appointment on

compassionate basis, which the petitioner/appellant herein failed to avail

on account of the purported indisposition and hospitalization. Strictly

speaking, therefore, the right of the petitioner for consideration stood

satisfied and therefore, the argument that the appellant was never accorded

consideration for appointment against the higher post is not tenable in law.

15. The emphasis of the argument today, as advanced by the learned

counsel for the appellant is that the appellant ought to be provided a third

opportunity to take the type-test with a view to seek appointment against

the higher post of Junior Assistant. The issue is whether any such direction

ought to be issued in law for providing a third opportunity when two

opportunities already stood offered in the past. Needless to say that it was

only after having offered two opportunities to clear the type-test that the

petitioner was appointed against a Class-IV post.

16. In this regard, reliance can be placed upon the observations of the

Apex Court in Umrao Singh's case (supra), wherein Court refused further

consideration on compassionate grounds lest it gave rise to "endless

compassion." What was observed by their Lordships is as under:

"8. Admittedly the respondent's father died in harness while working as Sub-Inspector, C.I.D. (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 L.D.C. according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of L.D.C. by order dated 14.12.1989. He accepted the appointment as L.D.C. 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 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."

17. Not only this, a considerable time has since passed from the date

of death of father of the petitioner and the appointment of the

petitioner/appellant herein in the year 2015. The consideration having been

accorded and the appointment made, the purpose of compassionate

appointment which is to prevent a family from vagrancy and destitution

having been achieved, we are not inclined to interfere in the judgement and

order impugned rendered by the learned Single Judge.

18. For the reasons aforementioned, we do not find any merit in the

present Letters Patent Appeal, which is, accordingly, dismissed along with

connected applications.

                                                (Puneet Gupta)         (Dhiraj Singh Thakur)
                                                       Judge                          Judge
               Jammu
               28.07.2021
               Muneesh



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




MUNEESH SHARMA
2021.07.30 17:54
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