MOHAMMAD RAFIQ SHEIKH v. UT OF JK & ORS

Through: Mr. Bikramdeep Singh, Dy. AG with Ms. Nowbahar Khan, AC CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE

O R D E R 13.11.2024 Oral:

In the instant petition the petitioner herein has prayed for following reliefs:- “......this petition may be allowed and respondents be directed to speed up the case of petitioner for appointment on compassionate grounds for securing the ends of justice.”

The aforesaid relief has been prayed on the strength that petitioner’s father namely Mohammad Sulaman Sheikh while working as a Chowkidar with the respondents, died during his service on

01.11.1991, in a cross firing incident and since none of the family members of the petitioner were eligible for appointment on compassionate grounds then, the petitioner as such applied for the same before the respondents upon attaining majority with the consent of the other family members notwithstanding the payment of an ex- gratia relief of Rs. 1 lac paid to the family of the petitioner on account of death of his father. Arif Hameed I attest to the accuracy and authenticity of this document

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Objections to the petition have been filed by the respondents, wherein it is admitted that the father of the petitioner died while working as a Chowkidar in a cross firing accident on 01.11.19991, whereafter the wife of the deceased approached the Chief Engineer respondent for compassionate appointment under SRO 43 of his son namely Mohd Rafiq Sheikh the petitioner herein and that the requisite documents in this regard were submitted to the Chief Engineer vide letter no. EE/CID/PDC/Spr/654 dated 09.09.2017, although earlier an application in the year 1994 had also been made by the widow of the deceased in terms of SRO-194/283, in the year 1994 and that the petitioner herein after the death of his father and attaining majority in the year 2009 sought his appointment on compassionate grounds which appointment cannot be offered to the petitioner in view of the fact that the claim lodged by the petitioner is time barred. Heard learned counsel for the parties and perused the record.

It is settled position of law that appointment in public service has to be made strictly on the basis of open invitation of applications on merit, however, to this general rule there are some exceptions carved out in the interest of justice and to meet certain contingencies and one such exception is appointing of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. It is an equally settled position of law that the whole object of granting compassionate appointment is to enable family of the deceased to tied over the sudden crises. Arif Hameed I attest to the accuracy and authenticity of this document

20.11.2024 WP(C) 78/2022 It is also settled position of that compassionate appointments can neither be claimed nor be granted unless the rules governing such appointments are in place and such appointments are to be made strictly in accordance with such rules governing such appointments. It is also significant to note here that in the matter of compassionate appointments, the Apex Court has summarized the duty of courts while dealing with a matter of compassionate appointment in case titled as “LIC Vs. Asha Ramchandra Ambekar” reported in 1994 (2) SCC 718 and has held as under:

Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic considerations.....

......Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom". Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be..... ..... The courts should endeavor to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. In the very case itself, there are regulations and instructions which we have extracted above..... .... The court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of sub-clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the circular dated January 20, 1987 interdicts such an appointment on compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered”.

Having regard to the aforesaid position of law and reverting back to the case in hand, it is not in dispute that the deceased father of the Arif Hameed I attest to the accuracy and authenticity of this document

20.11.2024 WP(C) 78/2022 petitioner had died on 01.11.1991, while being in service of the respondents. It is also not in dispute that the wife of the deceased have had applied for compassionate appointment in the year 1994 and in the said case, respondents did not taken any decision thereon and indisputably the wife of the deceased has not complained of non- consideration of her claim for compassionate appointment till the year 2013, when she submitted an application for compassionate appointment of her son the petitioner herein. In view of the aforesaid admitted position, it can safely be said that the family of the deceased had overcome the effect of hardships caused by the death of the deceased and sustained the loss and though the wife of the deceased could be said to have had a claim for compassionate appointment yet the wife of the deceased seemingly has abandoned her said claim and has after considerable period time of more than 20 years lodged a claim for compassionate appointment for her son, the petitioner herein, which in the facts and circumstances of the case in as much as having regard to the object of providing a compassionate appointment in as much as the law laid down from time to time by the Apex Court in this regard cannot be permitted at this stage.

Resultantly, the petition fails and is accordingly dismissed. (JAVED IQBAL WANI) JUDGE SRINAGAR 13.11.2024 ARIF Whether the order is reportable? Whether the order is speaking? Yes/No Yes/No Arif Hameed I attest to the accuracy and authenticity of this document

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