Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of Jk Through vs Zahoor Ahmad Khan Age 25 Years on 23 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 57/2023
Reserved on 14.05.2025
Pronounced on 23.05.2025
1. Union Territory of JK through
Commissioner/Secretary to Govt.
General Department, Civil Secretariat,
Srinagar/Jammu. ...Petitioner(s)/Appellant(s)
2. Divisional Commissioner, Kashmir.
3. Deputy Commissioner, Kupwara.
Through: Mr. Hakim Aman Ali, Dy. AG vice Mr. Waseem Gul, GA
Vs.
1. Zahoor Ahmad Khan Age 25 years ...Respondent(s)
S/o Mohammad Yousuf Khan
R/o Diver Lolab, Kupwara.
2. Sajad Ahmad Khan
S/o Mohammad Yousuf
R/o Diver Lolab, Kupwara.
3. Financial Commissioner, Home Department,
J&K Govt. Civil Secretariat,
Srinagar/Jammu.
Through: Mr. Mir Majid Bashir, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjeev Kumar, J
1. This intra-court appeal arises out of an order and judgment dated 1 st
September 2022 passed by the learned Single Judge of this Court ["the
Writ Court"] in SWP No. 775/2018 titled Zahoor Ahmad Khan vs.
State of JK & Ors. whereby the Writ Court has allowed the writ
petition filed by the respondent No. 1 and directed the appellants
herein to offer the respondent No. 1 compassionate appointment under
SRO 43 of 1994 in relaxation to age and qualification, if required.
Mohd Altaf Nima
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and authenticity of this
23.05.2025
2. Before we advert to the grounds of challenge urged by Mr. Hakim
Aman Ali, learned Dy. AG in support of this appeal, we deem it
appropriate to set-out few relevant facts.
3. The brother of the respondent No. 1 namely Fareed Ahmad Khan was
reportedly killed by some unknown gunmen in the year 1994.
Respondent No. 1 was 11 years old at that time. With regard to the
incident, an FIR also came to be registered with the concerned Police
Station. Respondent No. 2 namely Sajad Ahmad Khan, another
brother of the deceased applied for compassionate appointment in
terms of SRO 43 of 1994. The case of Sajad Ahmad Khan came to be
processed and before he could accept his appointment under
compassionate grounds, he came to be appointed in the Police
Department in the year 2007. As a result of his appointment in the
Police Department on regular basis, Mr. Sajad Ahmad Khan,
withdrew his request for appointment on compassionate grounds in
lieu of the death of his brother namely Fareed Ahmad Khan. On the
request of Mr. Sajad Ahmad Khan, the case for compassionate
appointment in the name of respondent No. 1 came to be processed in
the Office of Deputy Commissioner, Kupwara.
4. The matter was considered in the District Level Screening-cum-
Coordination Committee and on the basis of recommendations
thereof, the Deputy Commissioner, Kupwara sanctioned cash
compensation of Rs. 4.00 lacs in favour of NOKs of the deceased vide
his Order No. DCK/R/546 of 2013 dated 29.03.2013. The claim of
respondent No. 1 for compassionate appointment was thus declined.
The decision taken by Deputy Commissioner, Kupwara of releasing
the cash compensation of Rs. 4.00 lacs in favour of NOKs of the
deceased was communication to the GAD vide communication dated
DCK/LS/ARA/16/700-701 dated 19.10.2016. This communication
was called in question by respondent No. 1 in SWP No. 775/2018. It is
this petition which has been allowed by the Writ Court in terms of the
impugned judgment.
5. Impugned judgment has been assailed by the appellants primarily on
the ground that the Writ Court has not considered the settled legal
position of law as elaborately laid down by the Hon'ble Supreme
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Court in its recent judgment in the case of The State of West Bengal
vs. Debabrata Tiwari & Ors. 2023 Live law (SC) 175. It is
submitted that the Writ Court failed to appreciate that in the instant
case, respondent No. 1 had approached the appellants for seeking
compassionate appointment after a period of more than 15 years after
the death of the deceased.
6. It is argued by Mr. Hakim Aman Ali, learned Dy. AG that the Writ
Court also failed to take note of the fact that one of the brother of
deceased namely Mr. Sajad Ahmad Khan already stood appointed in
the Police and, therefore, the family had successfully tided over the
financial crisis which it had been put due to untimely demise of the
bread-earner of the family.
7. Per contra, Mr. Mir Majid Bashir, learned counsel appearing for the
respondent No. 1 would support the judgment passed by the Writ
Court and submit that the respondent No. 1 was only 11 years old at
the time of death of deceased and, therefore, could have applied for
compassionate appointment only after attaining the majority. He
would, therefore, argue that the delay, which has occasioned due to
the reasons beyond the control of respondent No. 1, is to be ignored.
The Writ Court has taken a compassionate view in the matter and
allowed the writ petition. He would further submit that the cash
assistance of Rs. 4.00 lacs ordered by the Deputy Commissioner,
Kupwara has not been accepted by respondent No. 1.
8. Having heard learned counsel for the parties and perused the material
available on record, we need to first take note of some admitted facts.
9. The deceased was killed in a militancy related incident in the year
1994. Respondent No. 1 was only 11 years old. His elder brother
namely Sajad Ahmad Khan on acquiring eligibility submitted his
application for compassionate appointment under SRO 43 of 1994.
The application was considered by the Deputy Commissioner,
Kupwara, who vide his Order No. 236/DCK/Adm. of 2009 dated
16.11.2009 ordered the appointment of Mr. Sajad Ahmad Khan in the
Animal Husbandry Department. By the time, Mr. Sajad Ahmad Khan,
also stood appointed in the Police Department in a regular selection
process. He, therefore, submitted an application for withdrawal of his
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23.05.2025
name from the appointment, to be substituted by his brother i.e.,
respondent No. 1. This happens in the year 2009.
10. The matter with regard to the appointment of respondent No. 1 on
compassionate grounds was considered by the District Level
Screening-cum-Coordination Committee headed by the Deputy
Commissioner, Kupwara. Upon considering the relevant factors, the
Committee recommended the release of cash compensation of Rs.
4.00 lacs in lieu of Government job in favour of NOKs of the
deceased Fareed Ahmad Khan.
11. This decision of the Deputy Commissioner, Kupwara is rued by the
respondent No. 1. The communication of the Deputy Commissioner,
allowing cash compensation in favour of NOKs of the deceased dated
19th October 2016 was assailed by the appellants in SWP No.
775/2018 which the Writ Court has allowed in terms of the order and
judgment impugned in this appeal.
12. Indisputably, in this case, respondent No. 1 approached the appellants
for appointment after a period of 15 years. Not only the family had
comfortably survived till the year 2009, but one of the family
members namely Mr. Sajad Ahmad Khan too had been appointed in
the Police Department. The financial crisis which the family was put
in due to unfortunate killing of deceased Fareed Ahmad Khan, the
bread-earner of the family, was over. There was, thus, no reason or
justification to offer to the second brother of the deceased an
employment under SRO 43 of 1994.
13. It is now well settled that the object of providing employment on
compassionate grounds is to enable the family of the deceased to tide
over the sudden crisis which it is put in due to the death of the bread-
earner of the family. The death of a person killed in militancy related
incident or of an employee in harness does not entitle his family to
such source of livelihood. The authority concerned which is to offer
the compassionate appointment is obliged to examine the financial
condition of the family of the deceased and it is only when it is
satisfied that, but for the provision of employment to one of the
dependents, the family will not be able to tide over the crisis.
Mohd Altaf Nima
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23.05.2025
14. The question as to whether an application for compassionate
appointment should be considered after a delay of 15 years has been
considered by the Hon'ble Supreme Court in Debabrata Tiwari.
Paragraph 7.5 of the judgment is noteworthy and is set out below:
"7.5. Considering the second question referred to above,
in the first instance, regarding whether applications for
compassionate appointment could be considered after a
delay of several years, we are of the view that, in a case
where, for reasons of prolonged delay, either on the part
of the applicant in claiming compassionate appointment
or the authorities in deciding such claim, the sense of
immediacy is diluted and lost. Further, the financial
circumstances of the family of the deceased, may have
changed, for the better, since the time of the death of the
government employee. In such circumstances, Courts or
other relevant authorities are to be guided by the fact that
for such prolonged period of delay, the family of the
deceased was able to sustain themselves, most probably
by availing gainful employment from some other source.
Granting compassionate appointment in such a case,
as noted by this Court in Hakim Singh would amount to
treating a claim for compassionate appointment as though
it were a matter of inheritance based on a line of
succession which is contrary to the Constitution. Since
compassionate appointment is not a vested right and the
same is relative to the financial condition and hardship
faced by the dependents of the deceased government
employee as a consequence of his death, a claim for
compassionate appointment may not be entertained after
lapse of a considerable period of time since the death of
the government employee."
15. At this stage, we also deem it appropriate to set out paragraph 7.2 of
the judgment supra, to steer clear the point that the compassionate
appointment is not a source of recruitment, but is only a benevolent
gesture on the part of State to ensure that the dependents of the
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deceased employee or a person killed in a militancy action are not
deprived of the means of livelihood. What are the parameters to be
kept in mind are enumerated in para 7.2 which reads thus:
"7.2. On consideration of the aforesaid decisions of this
Court, the following principles emerge:
i. That a provision for compassionate appointment
makes a departure from the general provisions
providing for appointment to a post by following a
particular procedure of recruitment. Since such a
provision enables appointment being made without
following the said procedure, it is in the nature of
an exception to the general provisions and must be
resorted to only in order to achieve the stated
objectives, i.e., to enable the family of the deceased
to get over the sudden financial crisis.
ii. ii. Appointment on compassionate grounds is not a
source of recruitment. The reason for making such
a benevolent scheme by the State or the public
sector undertaking is to see that the dependants of
the deceased are not deprived of the means of
livelihood. It only enables the family of the
deceased to get over the sudden financial crisis.
iii. Compassionate appointment is not a vested right
which can be exercised at any time in future.
Compassionate employment cannot be claimed or
offered after a lapse of time and after the crisis is
over.
iv. That compassionate appointment should be
provided immediately to redeem the family in
distress. It is improper to keep such a case pending
for years.
v. In determining as to whether the family is in
financial crisis, all relevant aspects must be borne
in mind including the income of the family, its
liabilities, the terminal benefits if any, received by
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the family, the age, dependency and marital status
of its members, together with the income from any
other source."
16. In the instant case, not only the respondent No. 1 approached the
appellants for compassionate appointment after a period of more than
15 years after the death of the bread-earner of the family, but by the
time he approached the appellants, one of the family members had
already been gainfully employed in the Police Department of the
Government of J&K.
17. In view of the clear position emerging from the judgment in
Debabrata Tiwari case (supra) and admitted fact situation obtaining
in the case, we find merit in this appeal and the same is accordingly
allowed. The impugned judgment of the Writ Court is set-aside and as
a consequence whereof, SWP No. 775/2018 is also dismissed.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
23.05.2025
Altaf
Whether approved for reporting? Yes
Mohd Altaf Nima
I attest to the accuracy
and authenticity of this
23.05.2025
