J&K High Court Rejects Compassionate Appointment Claim | Delay Of 15 Years And Family’s Improved Finances Undermine Urgency
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar set aside a writ court judgment that had directed authorities to provide compassionate appointment to a claimant under SRO 43 of 1994. The court found that the claim, made more than fifteen years after the incident, was untenable in light of the claimant's delayed application and change in family circumstances. The court dismissed the writ petition filed before the single judge and allowed the intra-court appeal filed by the Union Territory administration.
The intra-court appeal was filed against a judgment delivered by the Single Judge of the High Court in SWP No. 775/2018. The respondent had sought compassionate appointment under SRO 43 of 1994 following the death of his brother, Fareed Ahmad Khan, who was reportedly killed by unknown gunmen in 1994 in a militancy-related incident. At the time, the respondent, Zahoor Ahmad Khan, was 11 years old.
In the immediate aftermath of the incident, another brother of the deceased, Sajad Ahmad Khan, applied for compassionate appointment under SRO 43 of 1994. Before the appointment could be finalized, he secured a regular position in the Police Department in 2007. Consequently, he withdrew his request for compassionate appointment and suggested that the claim be transferred to Zahoor Ahmad Khan.
Following this, Zahoor Ahmad Khan's case was processed by the Deputy Commissioner, Kupwara, and placed before the District Level Screening-cum-Coordination Committee. After review, the Committee sanctioned a cash compensation of Rs. 4.00 lakhs in favor of the next of kin (NOKs) of the deceased under Order No. DCK/R/546 of 2013 dated 29.03.2013. This decision was communicated to the General Administration Department (GAD) through a letter dated 19.10.2016.
Zahoor Ahmad Khan challenged the decision in SWP No. 775/2018, which was allowed by the writ court. The writ court directed the appellants to offer compassionate appointment to the petitioner in relaxation of age and qualification, if necessary.
Aggrieved by this decision, the Union Territory of Jammu & Kashmir through the Commissioner/Secretary to Government, General Department, Divisional Commissioner Kashmir, and Deputy Commissioner Kupwara filed the present appeal.
In the appeal, it was submitted that the Single Judge had failed to consider the legal principle laid down by the Supreme Court in State of West Bengal vs. Debabrata Tiwari & Ors., 2023 LiveLaw (SC) 175. The appellants argued that the application for compassionate appointment had been made after more than 15 years from the death of the deceased and that one of the deceased's brothers was already employed in the Police Department. It was further argued that the family had already overcome its financial crisis and the delay in application diluted the sense of urgency required for compassionate appointments.
The respondent, represented by counsel Mr. Mir Majid Bashir, supported the decision of the Single Judge. He submitted that the respondent could not have applied for compassionate appointment earlier as he was only 11 years old at the time of the death. He also contended that the sanctioned cash compensation had not been accepted by the respondent and thus should not preclude the grant of appointment.
The Division Bench acknowledged that Zahoor Ahmad Khan was a minor at the time of the death of his brother and noted that the application for compassionate appointment was processed only after his elder brother Sajad Ahmad Khan withdrew his own claim in 2009. However, the court stated in "Not only the family had comfortably survived till the year 2009, but one of the family members namely Mr. Sajad Ahmad Khan too had been appointed in the Police Department."
The court recorded that "The financial crisis which the family was put in due to unfortunate killing of deceased Fareed Ahmad Khan, the bread-earner of the family, was over. There was, thus, no reason or justification to offer to the second brother of the deceased an employment under SRO 43 of 1994."
Quoting extensively from Debabrata Tiwari, the court remarked in "in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost" and "a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee."
The court further referred to paragraph 7.2 of the Debabrata Tiwari judgment which stated: "Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis."
The Bench concluded that since one family member had already gained regular employment and the family had survived for over 15 years, the basic premise for compassionate appointment no longer held.
The Division Bench allowed the appeal filed by the appellants. The court explicitly stated: "In view of the clear position emerging from the judgment in Debabrata Tiwari case (supra) and admitted fact situation obtaining in the case, we find merit in this appeal and the same is accordingly allowed."
Further, the court held: "The impugned judgment of the Writ Court is set-aside and as a consequence whereof, SWP No. 775/2018 is also dismissed."
Advocates Representing the Parties:
For the Petitioners: Mr. Hakim Aman Ali, Deputy Advocate General vice Mr. Waseem Gul, Government Advocate
For the Respondents: Mr. Mir Majid Bashir, Advocate
Case Title: Union Territory of JK & Ors. vs. Zahoor Ahmad Khan & Ors.
Case Number: LPA No. 57/2023
Bench: Justice Sanjeev Kumar and Justice Sanjay Parihar
[Read/Download order]
