"‘Discretion Must Be Reasoned, Not Arbitrary’: J&K High Court Orders Fresh Review of Constable’s Plea for Sub-Inspector Post Under Compassionate Grounds"
Safiya Malik
The High Court of Jammu and Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Mohd. Yousuf Wani directed the respondents to place the petitioner’s file before the General Administration Department (GAD) for fresh consideration of his request for appointment as Sub Inspector. The Court found merit in the petitioner’s grievance regarding non-placement of his case before the competent authority and issued timelines for compliance. It held that the request must be considered in light of recommendations made by the Director General of Police (DGP) and on the analogy of similar cases decided earlier. Pending this decision, the petitioner’s appointment as Constable remains unaffected.
The petitioner’s father, Abdul Rashid Shah, an Assistant Sub Inspector in the Jammu and Kashmir Police, was martyred by militants on 28 August 2017. Following his death, the petitioner applied for compassionate appointment under SRO 43 of 1994, seeking the post of Sub Inspector. His case was forwarded by the Police Headquarters (PHQ) to the Department of Home. However, the Home Department returned the file to PHQ for settlement under Rule 3(1) of SRO 43, suggesting appointment to a lower post.
Following this, the Inspector General of Police, Kashmir Zone, was requested to recommend the petitioner’s appointment as Constable. The petitioner consented in writing to this appointment and, vide order dated 24 November 2021, sanction was accorded to his appointment as Constable in the Executive Police under SRO 43 of 1994, subject to fulfilment of formalities.
Subsequently, the petitioner filed an Original Application before the Central Administrative Tribunal (CAT), Srinagar, challenging the communication dated 21 October 2021 and seeking appointment as Sub Inspector. He argued that similarly situated persons had been appointed as Sub Inspectors in previous years and that his case merited similar consideration under Rule 3(2) of SRO 43.
The respondents contested the claim, contending that under Rule 3(1) of SRO 43, the petitioner, being an undergraduate at the time of application, was entitled only to appointment in the lowest non-gazetted service rank. They asserted that the appointment as Constable was in accordance with the prevailing rules.
The Tribunal dismissed the Original Application on two grounds: first, that the petitioner had consented to his appointment as Constable, and second, that compassionate appointment at a higher post under SRO 43 was discretionary and not a matter of right.
Aggrieved, the petitioner approached the High Court, contending that the Tribunal had misconstrued the scope of Rule 3(2) of SRO 43 and that the competent authority to consider his case for a higher post was the General Administration Department, not the Home Department. He further argued that the recommendations made by the DGP in his favor were not properly placed before the appropriate authority.
The respondents maintained that the petitioner had no vested right to claim a higher post and that, having accepted the Constable post, he could not now challenge the same. However, the Court considered the sequence of events and the material on record, noting that the petitioner had persistently sought appointment as Sub Inspector before consenting under constrained circumstances.
The Division Bench recorded, "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."
The Court observed that "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 judgment further recorded, "While the matter was under consideration of the respondents, the petitioner completed his graduation in the year 2020 and asserted his claim to be appointed as Sub Inspector on the ground that he had the requisite eligibility to hold the post."
The Court stated, "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 discretion vested 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 to the Department of Home."
It was further recorded, "The recommendation dated 12th August, 2021, of the Police Headquarter made to the Principal Secretary to the Government, Home Department J&K, was never placed before the competent authority i.e. Government in the General Administration Department, for taking an appropriate decision in accordance with law."
The Court noted, "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 only in the Government in the General Administration Department."
The Court found merit in the submission advanced by the petitioner’s counsel and accordingly disposed of the petition by directing the respondents to place the entire file of the petitioner, including the communication dated 12th August 2021 issued by the Director General of Police, before the Government in the General Administration Department.
The file is to be considered for the petitioner’s request for appointment as Sub Inspector in the Jammu and Kashmir Police, taking into account the recommendations made by the DGP and on the analogy of any similar appointments made in previous years.
It was further directed that the respondents must submit the complete file to the Commissioner/Secretary to Government, General Administration Department, within four weeks from the date of the judgment. Upon receipt of the file, the Government in the General Administration Department shall take a decision on the petitioner’s request within a further period of six weeks.
The Court clarified that should the Government, in the exercise of its discretion and after considering the facts, circumstances, and material on record, decide to offer appointment to the petitioner against the post of Sub Inspector, such appointment shall be made prospectively.
Advocates Representing the Parties
For the Petitioner: Mr. Z. A. Shah, Senior Advocate, with Mr. A. Hanan, Advocate
For the Respondents: Mr. A. R. Malik, Senior Additional Advocate General, with Ms. Maha Majid, Assisting Counsel
Case Title: Irshad Rashid Shah v. UT of J&K and Others
Case Number: WP(C) No.1819/2023
Bench: Justice Sanjeev Kumar, Justice Mohd. Yousuf Wani
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