Jammu & Kashmir High Court – Srinagar Bench
Irshad Rashid Shah vs Ut Of J&K & Others on 22 April, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No.23
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
WP(C) No.1819/2023
IRSHAD RASHID SHAH ...PETITIONER(S)
Through: - Mr. Z. A. Shah, Sr. Advocate, with
Mr. A. Hanan, Advocate.
Vs.
UT OF J&K & OTHERS ...RESPONDENT(S)
Through:- Mr. A. R. Malik, Sr. AAG, with
Ms. Maha Majid, Assisting Counsel.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT(ORAL)
22.04.2025
Per Sanjeev Kumar ‘J’
1) The petitioner invokes the extraordinary writ
jurisdiction vested in this Court under Article 226 of the
Constitution of India to throw challenge to an order and
judgment dated 13th June, 2023, passed by the Central
Administrative Tribunal, Srinagar [“the Tribunal”] in OA
No.1752 of 2021 titled “Irshad Rashid Shah vs. UT of J&K
and others“, whereby the Tribunal has dismissed the
Original Application filed by the petitioner seeking Writ of
Mandamus to the respondents to appoint him as Sub-
Inspector under SRO 43 of 1994.
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2) Before we advert to the grounds of challenge urged by
learned counsel for the petitioner, we deem it appropriate to
take note of few facts which are germane to the determination
of the controversy raised in this petition.
3) The father of the petitioner, namely, Abdul Rashid Shah,
an Assistant Sub Inspector in Police, was martyred by the
militants on 28th August, 2017. Accordingly, on the request,
the case of the petitioner for compassionate appointment as
Sub Inspector in J&K Police under SRO 43 of 1994 was
forwarded to the Department of Home vide PHQ letter
No.Pers-A-74/2021/47954-57 dated 12.08.2021, which was
returned by the Department of Home to the PHQ to settle the
case of the petitioner in terms of Rule 3(1) of SRO 43 of 1994.
Accordingly, the PHQ vide its communication dated 10th
September, 2021, called upon the Inspector General of Police,
Kashmir Zone-Srinagar, to recommend the petitioner for
appointment against the post of Constable in J&K Police.
4) On 5th October, 2021, the petitioner submitted an
application to SSP, Anantnag, showing his willingness to be
appointed as Constable in the J&K Police under SRO 43 of
1994. In view of the consent given by the petitioner, the PHQ
vide order No.3521 of 2021 dated 24th November, 2021,
accorded sanction to his appointment as Constable in the
J&K Executive Police under SRO 43 of 1994 subject to
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fulfilment of pre-requisite formalities.
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5) The petitioner, as is evident, after having accepted his
appointment as Constable, filed OA No.1752 of 2021 before
the Tribunal, seeking, inter alia, a Writ of Certiorari for
quashing communication dated 21st October, 2021, and a
Writ of Mandamus to direct the respondents to appoint the
petitioner against the post of Sub Inspector on compassionate
grounds under SRO 43 of 1994. Apart from taking other
pleas, the petitioner pleaded before the Tribunal that in the
year 2007, 2009, 2014 and 2015, the Government had
appointed similarly situated persons as Sub Inspectors in the
J&K Police and, therefore, on the same analogy, the petitioner
ought to have been offered the post of Sub Inspector instead
of post of Constable.
6) The OA was contested by the respondents before the
Tribunal. Relying upon Rule 3(1) of SRO 43 of 1994, it was
contended by the respondents that the petitioner, in view of
his qualification, was entitled to be appointed in the lowest
rank of non-gazetted service and, therefore, was rightly
offered the post of Constable.
7) The OA was considered by the Tribunal and having
regard to the rival contentions and the material on record, the
Tribunal found the claim put forth by the petitioner lacking
merit and dismissed the OA. The OA was dismissed on two
counts; (i) that the petitioner had consented to be appointed
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as Constable after his case was turned down by the
Department of Home for his appointment against the higher
post of Sub Inspector; and (ii) that the relaxation by the
Government under the provisions of SRO 43 of 1994 is in the
discretion of the Government and, therefore, cannot be
claimed as a matter of right.
8) The impugned order and judgment is assailed by the
petitioner, primarily, on the ground that the Tribunal has not
appreciated the controversy that had arisen before it in its
right perspective. The Tribunal has failed to appreciate that
sub-rule (2) of Rule 3 of SRO 43 of 1994 preserves power of
the Government in the General Administration Department to
appoint at its discretion a family member of a person specified
in Rule 2 to a higher post in the non-gazetted service for which
he/she is eligible and qualified in terms of the Recruitment
Rules prescribed for that post.
9) Mr. Shah, learned senior advocate, would argue that the
Police Headquarter had found merit in the claim of the
petitioner to be appointed as Sub Inspector and, therefore,
sent the case to the Department of Home. The Home
Department ought not to have returned the file on the ground
that no relaxation of rules was called for in the matter. Rather
the Department of Home should have forwarded the case to
the General Administration Department to take a call in the
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matter and to consider the case of the petitioner for
appointment as Sub Inspector in the light of the
recommendations made by the DGP and similar orders
passed in respect of similarly situated persons.
10) Heard learned counsel for the parties and perused the
material on record.
11) It is trite law that for offering public employment, all
aspirants are entitled to equal opportunity explicit in Articles
14 and 16 of the Constitution. The available vacancies under
direct recruitment quota in the Government Departments as
well as PSUs are required to be notified for the information of
eligible candidates aspiring for such posts and the selection
process should be conducted in conformity with Articles 14
and 16 of the Constitution. However, appointment on
compassionate grounds offered to a dependent of a deceased
employee dying in harness is an exception to the said norms.
Indisputably, the compassionate appointment is a concession
and, therefore, cannot be claimed as a matter of right.
12) The Central Government as well as various Public Sector
Undertakings have made provision for compassionate
appointment of a dependent family member of a deceased
employee dying in harness by issuing executive instructions.
However, in the Union Territory of Jammu and Kashmir and
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before it, in the State of Jammu and Kashmir, the
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compassionate appointments were governed by the statutory
rules known as the Jammu and Kashmir (Compassionate
Appointment) Rules, 1994 [for short “the Rules of 1994”]
issued by the Governor in exercise of the powers conferred by
Section 124 of the Constitution of Jammu and Kashmir.
These Rules were saved under the J&K Reorganization Act,
2019, and were in vogue till repealed by the Jammu and
Kashmir Rehabilitation Assistance Scheme, 2022. Since the
compassionate appointment in the Union Territory of Jammu
and Kashmir was backed by statutory rules, as such, the
petitioner is well within his right to claim that he had a right
to be considered for compassionate appointment strictly as
per the provisions contained in the Rules of 1994, as were
prevalent at the time of consideration of case of the petitioner.
13) Adverting to the Rules of 1994, it is seen that Rule 2 of
these Rules deals with application of Rules and, inter-alia,
provides that a family member of a Government employee who
dies as a result of militancy related activities is also entitled
to compassionate appointment under the Rules of 1994. Rule
3 is at the core of the controversy raised before us in this
petition and, therefore, deserves to be set out below:
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
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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 five years 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.
(2) Nothing in sub-rule (1) shall derogate from the powers of
the Government in General Administration Department to
appoint, at its discretion a family member of a person specified
in Rule 2, to a higher post in the non-gazetted service for which
he/she is eligible and qualified in terms of the recruitment rules
prescribed for that post.
(3) Notwithstanding the provisions of the rules contained
herein for compassionate appointment, the family members of
the civilians killed in militancy related action or a civilian who
dies as a result of law and order situation and is not found
directly involved in the actual violence, or due to enemy action
on the Line of Actual Controle/International Border within the
State of Jammu and Kashmir as specified in clause (iii) of Rule
2 shall be entitled to a cash compensation in lieu of
appointment in Government service of an amount specified by
the Government which shall be payable in their favour in a
manner to be notified by the Government.
Provided that if any one among the family members of the
deceased civilian fulfills the eligibility criteria prescribed
under the aforesaid Rules for appointment into the government
service or acquires such eligibility within five years from the
date of death of the deceased person, then they shall have the
option either to choose the government service or the cash
compensation.
Explanation: All cases pending on the date of issuance of SRO
Notification 177 of 2014 dated 20.06.2014 shall be decided in
accordance with the said notification provided that the
candidate has applied within one year from the date of death of
the deceased person.
14) As is evident, in terms of sub-rule (1) of Rule 3, an
eligible family member of a person specified in Rule 2 is
entitled to 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. The
Arif Hameed power to make compassionate appointment under Rule 3(1)
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is conferred upon the Head of the Department concerned.
Rule 3(1) is a general provision and ordinarily compassionate
appointment to be offered to a dependent of deceased
employee is either in Class IV or in lowest rank of non-
gazetted service of the Government depending upon the
qualification of the applicant. Sub-rule (2) of Rule 3 carves
out an exception to the above general Rule contained in sub-
rule (1) and essentially preserves and conserves the power of
the Government in General Administration Department to
appoint, at its discretion, a family member of a person to a
higher post in the non-gazetted service for which he/she is
found eligible and qualified in terms of the relevant
Recruitment Rules. This power conferred or reserved in
Government is discretionary in nature and may be exercised
in appropriate cases, either suo-moto or on the
recommendations of the authority competent to make
compassionate appointment under sub-rule (1) of Rule 3 of
the Rules of 1994. Whether exercised suo-moto or otherwise,
it must be only in exceptional cases and reasons must be
given for the exercise of this power. This is so apparent from
conjoint reading of Rule 3(1) and 3(2). This position, of course,
has undergone change with the repeal of the Rules of 1994 by
the Rehabilitation Scheme, 2022. Now the compassionate
appointment to be offered can only be against the posts of
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Multi-Tasking Staff (MTS) or lowest in the non-gazetted cadre
posts.
15) Indisputably, when the petitioner applied for
compassionate appointment in the year 2018, he was under-
graduate and, thus, eligible only to be appointed as Constable
in the J&K Police. The petitioner was reluctant to accept his
appointment as Constable and, therefore, impressed upon the
police authorities to appoint him as Sub-Inspector on the
ground that the candidates similarly placed with him had, in
the previous years, been considered for the post of Sub-
Inspector. While the matter was under consideration of the
respondents, the petitioner completed his graduation in the
year 2020 and he asserted his claim to be appointed as Sub
Inspector on the ground that he had the requisite eligibility to
hold the post. On this, the Director General of Police vide his
communication dated 12th August, 2021, recommended case
of the petitioner for his appointment as Sub Inspector in the
J&K Police to the Department of Home in relaxation of the
Recruitment Rules under SRO 43 of 1994. The relaxation was
recommended by the DGP on the ground that the petitioner
was a victim of militancy.
16) Although no relaxation was required for appointment of
the petitioner as sub Inspector and the Government in the
General Administration Department, in exercise of its
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discretion vested in it under sub-rule (2) of Rule 3 of the Rules
of 1994, could have accorded consideration to the case of the
petitioner, yet the PHQ erroneously recommended the case of
the petitioner to the Department of Home for relaxation of
Rules of 1994.
17) Be that as it may, the Department of Home returned the
case of the petitioner with the request to PHQ to settle the
case of the petitioner under Rule 3(1) of SRO 43 of 1994.
Thereafter the PHQ took up the matter with the IGP, Kashmir,
and requested him to recommend the petitioner for
appointment as Constable. This is how the petitioner was
recommended by the SSP, Anantnag, for the post of Constable
after the petitioner relented and consented for such
appointment.
18) Ordinarily, and having regard to the facts and
circumstances emerging in the case, no indulgence in the
matter by us was called for. Under the Rules of 1994, the
petitioner has only right of consideration for compassionate
appointment and does not have any vested right to claim a
particular post, that too dehors the Rules of 1994. There is no
dispute with regard to the fact that on the date the petitioner
applied for compassionate appointment in the year 2018, he
was under-graduate and, therefore, ineligible to be appointed
as Sub-Inspector. The petitioner knew this and, therefore,
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showed his reluctance to accept the post of Constable offered
to him. He successfully persuaded the police authorities to
recommend his case for appointment as Sub-Inspector in
relaxation of Rule 1994. The basis for seeking appointment as
Sub-Inspector, as could be gathered from the material on
record, is that in similar circumstances and with regard to
similarly placed persons, the Government had exercised its
powers under sub-rule (2) of Rule 3 of the Rules of 1994. The
PHQ, as is evident from its communication dated 12th August,
2021, recommended the case of the petitioner for
appointment as Constable on the ground that it was a
militancy related case. The Department of Home, which was
approached by the DGP for seeking relaxation of the Rules of
1994, ought to have forwarded the case of the petitioner to
the Government in the General Administration Department to
take a call in the matter. The Government in the Department
of Home was not the competent authority to appoint the
petitioner against a higher post in the non-gazetted service
and such power was reserved and preserved only in the
Government in the General Administration Department in
terms of sub-rule (2) of Rule 3 of the Rules of 1994. This
process was, seemingly, not followed and the ostensible
reason, as we can see, could not only be total non-application
of mind on the part of the respondents but also a poor
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understanding of the provisions contained in the Rules of
1994.
19) We are aware that appointment against the post of
Constable was offered to the petitioner after he has consented
for the same but we cannot ignore the attending facts and
circumstances which led the petitioner to accept whatever
was offered to him at the end of the day. The petitioner had
relentlessly followed his case for appointment as Sub
Inspector and did not waste much time after his appointment
as Constable to seek justice by filing the OA before the
Tribunal. We are, therefore, not inclined to accept the plea of
the petitioner that the petitioner having accepted his
appointment as Constable cannot be permitted to turn
around and seek his appointment against the post of Sub
Inspector.
20) Be that as it may, the fact remains that the
recommendation dated 12th August, 2021, of the Police
Headquarter made to the Principal Secretary to the
Government, Home Department J&K, were never placed
before the competent authority i.e. Government in the
General Administration Department, for taking an
appropriate decision in accordance with law.
21) We, therefore, find merit in the submission made by Mr.
Arif Hameed
Shah and dispose of this petition by directing the respondents
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to place the entire file of the petitioner including
communication of the DGP dated 12th August, 2021, before
the Government in the General Administration Department
for considering the request of the petitioner for his
appointment as Sub Inspector in J&K Police in the light of the
recommendations made by the DGP/PHQ and also on the
analogy of similar appointments, if any, made during the
previous years. On receipt of the complete file and the
material that may be requisitioned by the General
Administration Department, a decision shall be taken on the
request of the petitioner for appointment as Sub Inspector in
the J&K Police in terms of sub-rule (2) of Rule 3 of the Rules
of 1994.
22) The respondents shall place the complete file before the
Commissioner/Secretary to Government, General
Administration Department, within a period of four weeks
from the date of this judgment. On the receipt of file, the
requisite decision shall be taken by the Government in
General Administration Department within a period of six
weeks thereafter.
23) Needless to say, that in case the Government, in the
facts and circumstances of the case and the material on
record, decides, in its discretion, to offer appointment to the
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petitioner against the post of Sub-Inspector, the same shall
be prospective in nature.
(MOHD. YOUSUF WANI) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar,
22.04.2025
"Bhat Altaf-Secy"
Whether the JUDGMENT is reportable: Yes/No
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