STATE OF J & K AND ORS.versusSAJAD AHMED MIR

A                          STATE OF J & KAND ORS.
                                          v.
                               SAJAD AHMED MIR

                                   JULY 17, 2006

B                  [ARIJITPASAYAT ANDC.K. THAKKER, JJ.]


         Service law:

         Appointment-Compassionate appointment-Applicant's father died in
C harness-Applicant sought for compassionate appointment 4 years after
    death-Authorities informed his ineligibility to appointrr.ent-Same not
    challenged-Writ petition filed after considerable period-Maintainability
    of-Held: Not maintainable on the ground of delay and laches-Jammu &
    Kashmir (Compassionate Appointment) Rules, 1994.
D        Compassionate appointment-Object of

         Constitution of fndia, 1950 :

         Article 14-General rule of appointment is that efigible candidates can
E come forward to apply and compete with each other-This general rule is
    in consonance with Article 14-lt should not be departed from except where
    compelling circumstances demand-Compassionate appointment-Held: Is
    an exception to general rule.

          The father of respondent-applicant died in harness in 1987. In 1991,
F   applicant applied for compassionate appointment. He was found under-aged
    but his case was recommended for relaxation of age bar. The authorities took
    decision in March, 1996 that no appointment could be given to him and he
    was informed accordingly. The applicant had never challenged that decision.
    In 1999, he filed Writ Petition before High Court, which was dismissed by
    Single Judge. On appeal, Division Bench held that applicant was entitled to
G   compassionate appointment in terms of rules and regulations which was in
    existence before coming into force of Jammu & Kashmir (Compassionate
    Appointment) Rules, 1994. Being dissatisfied with the order, authorities filed
    the present appeal.


H                                        576
                    STATE OF J & K v. SAJAD AHMED MIR                       577

      Allowing the appeal, the Court                                                A
       HELD: I. The Single Judge of High Court was right in dismissing the
petition on the ground of delay and lac hes 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. (581-G-H(                                                         B
      2.1. Normally, an employment in Government or other public sectors is
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. This
general rule should not be departed except where compelling circumstances           C
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. (582-B-DI                                                   D
      2.2. The father of the applicant died in March, 1987. 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     E
the employee. Moreover, the Single Judge was also right in holding that
though the order was passed in 1996, it was not challenged by the applicant
immediately. He took chance of challenging the order in 1999 when there
was inter-departmental communication in 1999. (583-G, H; 584-AJ

      State of Haryana and Ors. v. Rani Devi and Anr., 11996( 5 SCC 308:            p
AIR (1996) SC 2445; Life lnsumnce Corporation of India v. Asha Ramchandra
Ambekar (Mrs.) & Anr., ( 1994) 2 SCC 718; Umesh Kumar Nagpal v. State of
Haryana & Ors., ( 19941 4 SCC 138; Smt. Sushma Gosain & Ors. v. Union of
India & Ors.. 11989) 4 SCC 468 and Commissioner of Public Instructions &
Ors. v. KR. Vishwanath, (2005) 7 SCC 206, referred to.
                                                                                    G
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6642 of2004.

    From the Judgment and Order dated 2.12.2002 of the High Court of
Jammu and Kashmir in L.P.A. No. 131/2000.

      S. Mehdi Imam and Anis Suhrawardy for the Appellants.                         H
    578                     SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A         R.C. Pandey, R.D. Rathore and K.K. Gupta for the Respondent.

          The Judgment of the Court was delivered by

          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
B   Bench of the High Court of Jammu & Kashmir in L.P.A. No. 131 of2000. 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 - respondent
C   - applicant was working as the Lineman in Power Development Department
    (POD), 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
D   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
E   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 Bngineer,
    Electric Maintenance and RE Wing, Srinagar that the request of the applicant
    could not be acceded to and no appointment could be given.

p       Being aggrieved by the said decision, a writ petition was filed by t:1e
  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
G delay and lac hes 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 decision was taken in March, 1996 not to appoint
H the applicant on compassionate ground and he was informed accordingly.
  The applicant had never challenged that decision. What was done by the
            STATE OF l & K v. SA.IAD AHMED MIR [THAKKER, J.]                  579

authorities in 1999 was merely reiteration of the decision taken in 1996. It was      A
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           B
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 decis;on was taken that the     C
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.                                D
      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              E
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 (Compassionrte Appointment) Rules, 1994 came into force.
The claim of the appointment was declined by the Administrattve Department
in 1996 and communicated vide letter dated June 8, 1996. The Division Bench           F
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            G
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          H
    580                    SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A 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
B   petition. The 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
C   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
D 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
E 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
p !aches 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 l 987 and the applicant approached
G the Court in 1999, more than a decade had passed. Moreover, when the
  Division Bench heard the Letters Paten\ 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
H setting aside the order passed by the Division Bench restoring the' order of
            STATE OF J &K v. SAJAD AHMED MIR [THAKKER,l]                      581

the learned single Judge.                                                             A
      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 soug:1t, the approach of the Court would be liberal             B
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         C
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 been appointed and hence relaxation was           D
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            E
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            F
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           G
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          H
    582                    SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A 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
B '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 c.onsonance with Article 14 of the Constitution. On
C 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
D show favour to one at the cost of interests of several others ignoring the
  mandate of Article 14 of the Constitution.

           In State of Ha1J·ana 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
E   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 necessary for the authorities to frame rules, regulations or
F   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
G 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,
H
            STATE OF J &K v. SA.IAD AHMED MIR [THAKKER, .I.]                583
 it was ruled that public service appointment should be made strictly on the        A
 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            B
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     C
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.                                            D
       In Smt. Sushma Gosa in & 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 E
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 (Pasaya!, J.) had an occasion to
consider the above decisions and the principles laid down therein have been         p
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 G
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, H
    584                    SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A it was not challenged by the 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
B 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-applicant 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.
c D.G.                                                           Appeal allowed.