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CASE NO.: Appeal (civil)  6642 of 2004

PETITIONER: STATE OF J&K & OTHERS

RESPONDENT: SAJAD AHMED MIR

DATE OF JUDGMENT: 17/07/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: JUDGMENT

C.K. THAKKER, J.

The present appeal is filed by the appellant-State  against the judgment and order dated December 2, 2002  passed by the Division Bench of the High Court of  Jammu & Kashmir in L.P.A. No. 131 of 2000. By the  said order, the Division Bench of the High Court  quashed and set aside the order dated July 15, 2000,  passed by the learned single Judge in SWP No.966 of  1999.     The facts in nutshell are that the father of Sajad  Ahmed Mir \026 respondent - applicant was working as the  Lineman in Power Development Department (PDD), Civil  Secretariat, Srinagar. He died on March 6, 1987 while in  service. It appears that the applicant applied on  September 20, 1991 for getting an appointment on  compassionate ground against the vacant post resulted  due to death of his father. It was the say of the applicant  that his case was forwarded by the authorities with  recommendation in 1993 to give him appointment on  compassionate ground. It was also his case that the  Administrative Department recommended to appoint the  applicant after relaxation of qualification as well as in  age. The matter was taken up by the Executive Engineer,  Superintending Engineer as also by the Chief Engineer of  the Civil Secretariat of the Power Development  Department and the Administrative Department.  According to the applicant, on or about June 8, 1999,  the Administrative Department conveyed its decision to  the Chief Engineer, Electric Maintenance and RE Wing,  Srinagar that the request of the applicant could not be  acceded to and no appointment could be given.

Being aggrieved by the said decision, a writ petition  was filed by the applicant which came up for hearing  before a single Judge. A detailed affidavit was filed by the  authorities contending inter alia that the decision had  already been taken in 1996 that compassionate  appointment could not be given to the applicant and the  said decision was communicated on March 26, 1996,  whereas the writ petition was filed in 1999 and thus  there was gross delay and laches on the part of the  applicant in approaching the Court. It was also  contended that the applicant was not eligible and  qualified for appointment. The learned single Judge after considering the  relevant facts and the reply affidavit held that the

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decision was taken in March, 1996 not to appoint the  applicant on compassionate ground and he was  informed accordingly. The applicant had never  challenged that decision. What was done by the  authorities in 1999 was merely reiteration of the decision  taken in 1996. It was also observed by the learned single  Judge that the whole purpose of compassionate  appointment of a family member of a Government  employee dying in harness is to obviate hardship likely  to be caused to the family and adverse financial  difficulties which it is likely to face due to death of its  bread earner. Such appointment is not an appointment  under statutory right but is in the nature of concession  granted by the State Government, keeping in view  extreme hardship of indigent family of the deceased  employee. After considering the facts and circumstances,  the Administrative Department declined to offer  compassionate appointment to the applicant. From the record, it is clear that in 1996, the  decision was taken that the applicant could not be  appointed on compassionate ground and it was conveyed  to the applicant. That action was never challenged. In  1999, the petition was filed. According to the learned  Judge, once on consideration of facts and  circumstances, a conscious decision was taken and the  prayer was turned down, no case was made out by the  applicant so as to entitle him to get relief and  accordingly the petition was dismissed. Being aggrieved by the said order, the applicant  approached the Division Bench by filing Letters Patent  Appeal. The Division Bench of the High Court proceeded  to consider the matter by observing "when compassion is  sought, then reason has to take back seat". It then  proceeded to consider the matter and observed that the  applicant applied for compassionate appointment in  September, 1991. At that time, he was underage. But his  case was recommended by Administrative Department  for relaxation of age bar. In the meantime, Jammu &  Kashmir (Compassionate Appointment) Rules, 1994  came into force. The claim of the appointment was  declined by the Administrative Department in 1996 and  communicated vide letter dated June 8, 1996. The  Division Bench noted that the said letter no doubt  mentioned the fact that earlier also the claim of the  applicant was declined. Reference was also made to  earlier communications. According to the Division  Bench, all the Departments were favourable to the  applicant and recommended his case for compassionate  appointment. The father of the applicant died in harness  in 1987. The claim of the applicant for compassionate  appointment was, therefore, supposed to be considered  in terms of rules and regulations then in force. The  Division Bench observed that earlier no limitation was  fixed for applying for compassionate appointment and  the claim of the applicant was wrongly rejected by the  authorities. Accordingly, he was held ’entitled’ to  compassionate appointment in terms of rules and  regulations which were in existence before coming into  force of 1994 Rules and a direction was issued to  consider the case of the applicant and to take decision  within a period of six weeks from the date when the copy  of the order would be made available to the authorities.  The appeal was accordingly allowed holding that the  applicant would be entitled to consideration from the  date three years prior to the filing of the petition. The

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Court held that for that period, the applicant would be  given notional benefits minus monetary benefits. Being dissatisfied with the order of the Division  Bench, the authorities have approached this Court. On  October 17, 2003, notice was issued on application for  condonation of delay in filing SLP (since there was delay  of 172 days) as well as on Special Leave Petition. Interim  stay was granted meanwhile. Thereafter, the matter was  heard from time to time. Leave was granted on October  4, 2004 and hearing was expedited. We have heard learned counsel for the parties. The  learned counsel for the State submitted that the Division  Bench has committed clear error of law in allowing  Letters Patent Appeal and setting aside the order passed  by the learned single Judge. He submitted that the  father of the applicant died in 1987 and an application  was made for the first time in 1991. Even on that day,  the applicant was minor and was not eligible to be  appointed. Moreover, the authorities considered the case  of the applicant and in March, 1996, the claim of the  applicant was rejected. The said fact was communicated  not only to the Department but also to the applicant and  applicant was aware of such decision. He, however, kept  silence and did nothing, nor did he challenge the said  decision at any time. After about three years, in 1999,  when again there was a departmental communication,  the applicant woke up and approached the Court and  challenged the said decision. Thus, there was gross delay  and laches on the part of the applicant in approaching  the Court and invoking the writ jurisdiction of the High  Court. The learned single Judge was, therefore, wholly  justified in dismissing the petition. It was also argued by  the learned counsel that the sole object of offering  compassionate appointment is to ensure that the family  of the employee who dies in harness does not suffer.  When the father of the applicant died in 1987 and the  applicant approached the Court in 1999, more than a  decade had passed. Moreover, when the Division Bench  heard the Letters Patent Appeal, more than fifteen years  were over and the said fact ought to have been taken  into account by the Division Bench and it ought not to  have reversed the decision of the learned single Judge.  He, therefore, submitted that the appeal deserves to be  allowed by setting aside the order passed by the Division  Bench restoring the order of the learned single Judge. The learned counsel for the respondent, on the  other hand, supported the order passed by the Division  Bench. He stated that discretion has been exercised by  the Division Bench keeping in view the principles of  justice, equity and good conscience. The Bench was fully  justified in observing that when ’compassion’ was  sought, the approach of the Court would be liberal and  pragmatic rather than rigid and pedantic. The approach  adopted by the Division Bench in showing sympathy  cannot be faulted with and the appeal deserves to be  dismissed. Having heard the learned counsel for the parties, in  our opinion, the appeal should be allowed. Certain facts  are not in dispute. The father of the applicant who was  in service, died in harness in March, 1987 and for the  first time, the application was made by the applicant  after more than four years i.e. in September, 1991. The  family thus survived for more than four years after the  death of the applicant’s father. Even at that time, the  applicant, under the relevant guidelines, could not have

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been appointed and hence relaxation was prayed. It is no  doubt true that the case of the applicant was favourably  considered by the Departments and recommendation  was made, but it is also a fact which has come on record  that in March, 1996, a decision was taken by the  authorities not to give appointment to the applicant on  compassionate ground. From the affidavit in reply filed  by the authorities in the High Court as also from the  finding of the learned single Judge, it is clear that the  applicant had knowledge about rejection of his  application in 1996 itself. Nothing was done by the  applicant against the said decision. Considerable period  elapsed and only in 1999, when there was some inter- Departmental communication and Administrative Officer  informed the Chief Engineer vide a letter dated 8th June,  1999 that the applicant could not be appointed on  compassionate ground that the applicant woke up and  filed a writ petition in the High Court. It is also pertinent  to note that the letter of 1999 itself recites that the case  of the applicant for compassionate appointment was  considered and the prayer had already been turned  down by the Administrative Department and the said  fact had been communicated to the office of the Chief  Engineer. A copy of the said letter was also annexed to  the letter of 1999. In our opinion, therefore, the learned  single Judge was right in dismissing the petition on the  ground of delay and laches by holding that the applicant  had not done anything for a considerable period after  March, 1996 when his claim was rejected even though  he was informed about the decision and was very much  aware of it. The Division Bench, in our view, was not  justified in setting aside the said order and in directing  the authorities to consider the case of the applicant for  compassionate appointment and by giving directions to  give other benefits. We may also observe that when the Division Bench  of the High Court was considering the case of the  applicant holding that he had sought ’compassion’, the  Bench ought to have considered the larger issue as well  and it is that such an appointment is an exception to the  general rule. Normally, an employment in Government or  other public sectors should be open to all eligible  candidates who can come forward to apply and compete  with each other. It is in consonance with Article 14 of the  Constitution. On the basis of competitive merits, an  appointment should be made to public office. This  general rule should not be departed except where  compelling circumstances demand, such as, death of  sole bread earner and likelihood of the family suffering  because of the set back. Once it is proved that in spite of  death of bread earner, the family survived and  substantial period is over, there is no necessity to say  ’goodbye’ to normal rule of appointment and to show  favour to one at the cost of interests of several others  ignoring the mandate of Article 14 of the Constitution.         In State of Haryana and Ors. v. Rani Devi and Anr.  [(1996) 5 SCC 308 : AIR 1996 SC 2445], it was held that  the claim of applicant for appointment on compassionate  ground is based on the premise that he was dependant  on the deceased-employee. Strictly this claim cannot be  upheld on the touchstone of Article 14 or 16 of the  Constitution. However, such claim is considered  reasonable as also allowable on the basis of sudden crisis  occurring in the family of the employee who had served  the State and died while in service. That is why it is

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necessary for the authorities to frame rules, regulations  or to issue such administrative instructions which can  stand the test of Articles 14 and 16. Appointment on  compassionate ground cannot be claimed as a matter of  right.         In Life Insurance Corporation of India v. Asha  Ramchandra Ambekar (Mrs.) & Anr. [(1994) 2 SCC 718], it  was indicated that High Courts and Administrative  Tribunals cannot confer benediction impelled by  sympathetic considerations to make appointments on  compassionate grounds when the regulations framed in  respect thereof do not cover and contemplate such  appointments.          In Umesh Kumar Nagpal v. State of Haryana & Ors.  [(1994) 4 SCC 138], it was ruled that public service  appointment should be made strictly on the basis of open  invitation of applications and on merits. The appointment  on compassionate ground cannot be a source of  recruitment. It is merely an exception to the requirement  of law keeping in view the fact of the death of employee  while in service leaving his family without any means of  livelihood. In such cases, the object is to enable the  family to get over sudden financial crisis. Such  appointments on compassionate ground, therefore, have  to be made in accordance with rules, regulations or  administrative instructions taking into consideration the  financial condition of the family of the deceased. This  favorable treatment to the dependant of the deceased  employee must have clear nexus with the object sought  to be achieved thereby, i.e. relief against destitution. At  the same time, however, it should not be forgotten that  as against the destitute family of the deceased, there are  millions and millions of other families which are equally,  if not more, destitute. The exception to the rule made in  favour of the family of the deceased employee is in  consideration of the services rendered by him and the  legitimate expectation, and the change in the status and  affairs of the family engendered by the erstwhile  employment, which are suddenly upturned.           In Smt. Sushma Gosain & Ors. v. Union of India &  Ors. [(1989) 4 SCC 468], it was observed that in claims of  appointment on compassionate grounds, there should be  no delay in appointment. The purpose of providing  appointment on compassionate ground is to mitigate the  hardship due to death of the bread-earner in the family.  Such appointments should, therefore, be provided  immediately to redeem the family in distress.         Recently, in Commissioner of Public Instructions &  Ors. v. K.R. Vishwanath, [(2005) 7 SCC 206], one of us  (Pasayat, J.) had an occasion to consider the above  decisions and the principles laid down therein have been  reiterated. In the case on hand, the father of the applicant  died in March, 1987. The application was made by the  applicant after four and half years in September, 1991  which was rejected in March, 1996. The writ petition was  filed in June, 1999 which was dismissed by the learned  single Judge in July, 2000. When the Division Bench  decided the matter, more than fifteen years had passed  from the date of death of the father of the applicant. The  said fact was indeed a relevant and material fact which  went to show that the family survived in spite of death of  the employee. Moreover, in our opinion, the learned  single Judge was also right in holding that though the  order was passed in 1996, it was not challenged by the

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applicant immediately. He took chance of challenging the  order in 1999 when there was inter-departmental  communication in 1999. The Division Bench, in our  view, hence ought not to have allowed the appeal. For the foregoing reasons, the appeal deserves to be  allowed and it is accordingly allowed. The order passed  by the Division Bench is set aside and that of the learned  single Judge is restored. In other words, the petition filed  by the respondent herein\027applicant before the learned  single Judge is ordered to be dismissed. In the facts and  circumstances of the case, however, there shall be no  order as to costs.