RIAZ AHMAD vs SCHOOL EDUCATION DEPARTMENT on 31 December 2024

ORDER

(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)

1. The applicant had initially approached the Hon’ble High Court of Jammu & Kashmir at Jammu by filing SWP No.2901/2016 whereby he sought direction upon the official respondents to amend the order of appointment of applicant issued by respondent No.2 vide his order No.DSEJ/Gen/SRO/386-77 dated 24.06.2009 and appoint him as Teacher on the analogy of proforma respondents from the date of his initial appointment in view of his eligibility and qualification with all consequential benefits of pay and seniority. Further the applicant sought

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directions to the official respondents to consider his claim projected in the representations already submitted to the respondents.

2. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of Notification No.G.S.R. 267(E) dated 29.04.2020 read with Notification No.G.S.R. 317(E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of U.T of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of SWP No.2901/2016 was ordered to be transferred by the Hon’ble High Court to this Tribunal on 11.11.2021 and numbered as Transferred Application No.353/2022.

3. The brief facts leading to filing of the instant Transferred Application are summarized as under:-

(i) The father of the applicant namely Abdul Qayoom died in harness on 04.09.2008 and at the time of his death he was serving as Teacher in School Education Department, District Cadre Kishtwar.

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(ii) The applicant was possessing the qualification of Higher Secondary Part-II from J&K Board of School Education, as such being eligible in all respects he applied to the respondents for compassionate appointment in his favour in terms of Jammu and Kashmir Compassionate Appointment Rules, 1994 issued by General Administration Department by virtue of SRO 43/1994 dated 22.02.1994.

(iii) At the relevant period of time the applicant was eligible for the post of Teacher in terms of Jammu and Kashmir Education (Subordinate) Recruitment Rules, 2008 issued by School Education Department vide Notification SRO 308 dated 16th October, 2008. In terms of the said Recruitment Rules the qualification prescribed for the post of Teacher was ‘10+2’. Thus the applicant has applied for compassionate appointment to the post of Teacher in School Education Department.

(iv) The case of applicant was processed by the respondents and vide order No.DSEJ/GEN/SRO-43/3876-77 dated 24.06.2009 issued by Director School Education, Jammu, the applicant was appointed as Class-IV

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(Orderly) in the pay scale of Rs.3050-3200 (Pre- Revised) in District Cadre Kishtwar under the provisions of SRO 43 of 1994.

(v) Pursuant to appointment order as Class-IV the applicant submitted joining report under protest and requested Chief Education Officer, Kishtwar for modification of the order for appointment as Teacher in view of parity with other persons who were having same qualification and appointed as Teacher.

(vi) The respondents delayed the matter on one pretext or the other which constrained the applicant to file another representation dated 27.07.2016 to the Administrative Secretary of the Department wherein he referred some orders evidencing the fact that in the same circumstance and with same qualifications some other persons were appointed as Teacher under SRO 43/1994, as such request was made to consider him also for appointment as Teacher in view of parity and in light of Judgment of the Hon’ble High Court.

(vii) Failure on the part of respondents to redress the genuine grievances of applicant, he was constrained to invoke

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the extra ordinary writ jurisdiction of the Hon’ble High Court of Jammu and Kashmir through the medium of SWP No.2901/2016 titled Riaz Ahmed V/s State of J&K & Ors and after the Reorganization Act, 2019 the aforesaid writ petition is transferred to this Tribunal for disposal under law.

4. The respondents filed their short response to the aforesaid Transferred Application and opposed the contention of applicant by stating that the claim of applicant for higher post under SRO 43 is not maintainable as the compassionate appointment is not a vested right which can be exercised at any point of time and compassionate appointments are being offered to mitigate the immediate needs of the family. It is also stated that the appointment on compassionate grounds cannot be claimed as a matter of right and the appointment on compassionate grounds is not another source of recruitment but merely an exception so that the family cannot be left without any means of livelihood. It is further stated in the reply that once the applicant has joined on Class-IV without any demur, later on he cannot turn around and seek appointment on higher post.

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5. Heard the learned counsels appearing for the parties and perused the record minutely.

6. The father of the applicant namely Abdul Qayoom died in harness on 04.09.2008. At the time of his death the deceased was working as Teacher in School Education Department. He was the sole bread earner of the family and the legal heir certificate on record bearing No.466/OQ dated 18.09.2008 issued by Tehsildar Kishtwar would reveal that there were five legal heirs of deceased including two married daughters. The applicant, his widow mother and younger brother who was just 20 years old at that time and was pursuing his studies were completely dependent upon the deceased. Since the entire family was facing great hardship in view of death of the sole bread earner of the family, as such there was no option for the applicant except to accept the appointment on Class-IV post and thus he joined on the said post under protest and immediately through proper channel approached the respondents with request to appoint him on the post of Teacher on the analogy of proforma respondents.

7. Learned Counsel for the applicant invited our attention to some of the orders enclosed with the Transferred Application which

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would show that in the similar circumstance proforma respondent No.4 (Pawan Kumar) whose father was Class-IV, is appointed to higher post of Lab Assistant on the basis of 10+2 qualification. Private respondent No.5 Zaffar Iqbal who was also 10+2 and his father was also Teacher, was appointed as Teacher and similarly private respondent No.6 (Karan Sudan) who was also 10+2 and whose father was also Teacher was appointed as Laboratory Assistant. Thus the learned counsel appearing for the applicant would submit that he is similarly placed with aforesaid persons but despite that he has been discriminated and has been appointed on the lower post of Class-IV.

8. As per the above mentioned submissions and available documents on record, we are of the considered view that the respondents have adopted a pick and choose policy in appointment of the applicant on compassionate grounds. The same relaxation given to others having similar qualification of 10+2 has been categorically denied to the applicant without proper consideration of his request for compassionate appointment on the post of Teacher.

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The Hon’ble High Court of Jammu & Kashmir in Judgment titled Imtiyaz Ahmed Malik V/s State & Ors observed as under: - “The State and its authorities are duty bound to deal with its citizens in accordance with the mandate of Statute and other Laws. If some of the citizens are similarly situated then they are to be considered for being given uniform treatment as they form a single class.”

The Hon’ble Supreme Court in a Judgment titled Surya Kant Kadam V/s State of Karnataka & Ors (2002) 9 SCC 445 has held as under: - “There should be no discrimination making appointments under compassionate grounds and directions issued for treating the appellant in the same manner as two later appointees has been treated.”

The Hon’ble High Court of Jammu & Kashmir in a case titled Zulfikar Ahmed Wani V/s State of Jammu & Kashmir (SWP No.957/2009) has held as under: - “It is common practice for the State to confer illegal benefits on its favourites and, thereafter, when such benefit is claimed by a similarly situated person to turn around and say that conferment of illegal benefit on one person cannot be justify extension of such benefit to other persons, though

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similarly place. The State, in such case, is neither ready to withdraw the benefit extended illegally in favour of someone close to the seat of power either because of relationship, political loyalties or such other reasons, nor willing to extend such benefit to a similarly placed persons or in some cases, more meritorious and deserving but without any political connections or close to the powers that be, though it wants such illegal favours to be condoned. When conferment of illegal benefit of concession assumes a pattern and the State does not extend such benefit in a single case but in favour of number of individuals over the time it cannot discriminate amongst the selection group of beneficiaries and make discrimination within the class picked up by it by conferment of illegal benefit.

In para 12 of the aforesaid judgment the Hon’ble High Court laid down following principle: - “12. From the above discussion, following principles emerge;

a. That when the State Government or its functionaries confer a benefit on a group of persons, as against a single person, in violation of Rules and conferment of such benefit assumes a pattern, the State Government cannot deny a similar benefit to a similarly placed person, only on the ground that as conferment of benefit on the group of persons was in violation of Rules. The State Government or its functionaries cannot refuse to extend such benefit to a similarly placed person claiming the benefit, unless such benefit is withdrawn/revoked in respect of the group of persons to whom it was extended.

b. That when the State Government or its functionaries identify a group or class of persons for conferment of a

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benefit though in violation of rules, the State Government and its functionaries cannot make any discrimination within the group and extend the benefit selectively and arbitrarily within the members of the group or the class and resist a claim for equal treatment on the ground that since identification of the group for conferment of benefit was itself illegal, the member of the group asking for equal treatment cannot be denied such equal treatment, unless benefit granted to the group or class is withdrawn/ revoked.”

9. This Tribunal considered the similar matter involving the same controversy in case titled Rajan Vikrant V/s State of J&K bearing T.A No.61/978/2020 wherein after scanning the law on the subject by referring various Judgments of Hon’ble High Court as well as of Hon’ble Supreme Court, it is held that the State and its authorities are duty bound to deal with its citizens in accordance with the mandate of Statute and other Laws. If some of the citizens are similarly situated then they are to be considered for being given uniform treatment and they form a single class in law. It is also held that there should be no discrimination making appointments under compassionate grounds and direction issued by Hon’ble Tribunal for treating the persons in the same manner as already the treatment given to other persons in the matter of appointment.

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10. The law cited by learned counsel for the respondents is distinguishable on facts as it laid down the general preposition that nobody can claim compassionate appointment on higher post as a matter of right but was unable to cite law pertaining to similar treatment to similarly situated persons even in cases of compassionate appointment. As a last effort the learned counsel for the respondents argued that once the applicant has accepted the appointment offered to him and thereafter he cannot claim reconsideration of his case for higher post. To this submission the learned counsel appearing for the applicant rebutted the same by arguing that at that relevant period of time the family was going through serious crises and he has no other option except to the accept the offer of appointment on lower post and thus under protest he has accepted the appointment on lower post to enable his family to sustain. In support of his arguments the learned counsel for applicant relied upon Judgments of Hon’ble High Court of Jammu and Kashmir reported as 2017(3) JKJ 631 (DB) titled Vishiv Deep Singh V/s State of J&K & Ors wherein Hon’ble Division Bench of J&K High Court dismissed the Judgment of Learned Single Judge who held that appellant already accepted appointment on lower post without any demur and thus cannot claim appointment on higher post. The Hon’ble Division Bench held that if a person possesses

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qualification above matriculation then he or she is to be offered a post other than Class-IV. In another Judgment reported as 2012 (4) JKJ 656 titled Mudasir Hamid V/s State the Hon’ble High Court held that the acceptance of appointment on lower post does not disentitle a person to seek consideration for being appointed on higher post in accordance with Statutory Rules. The Hon’ble High Court has further held that accepting the appointment on lower post has only enabled the family to sustain itself through lawful means. The learned counsel further cited Judgment reported as 1998 SLJ J&K 426 titled Anmolak Singh V/s State of J&K wherein it is held that appointment to be offered under these Rules on compassionate basis should be commensurate with the qualification of the persons seeking appointment.

11. Though one cannot claim compassionate appointment on higher post as a matter of right but the Hon’ble Apex Court as well as the Hon’ble High Court has held in a number of cases that compassionate appointment shall be given to an eligible family member of the deceased to a post which must be commensurate with his qualification and status and it is also equally settled that even in case of compassionate appointments there cannot be different yardsticks for similarly situated persons.

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12. The State and its functionaries are not allowed to discriminate between similarly situated persons and applicant’s claim is also required to be dealt with in the similar manner as the case of proforma respondents namely Pawan Kumar, Zaffar Iqbal and Karan Sudan who have been appointed on compassionate basis on higher post than Class-IV.

13. For what has been observed, considered and analyzed hereinabove and the foregoing reasons, the O.A succeeds as a consequence whereof direction is issued upon official respondents to appoint the applicant to the post of Teacher in School Education Department and to confer the said benefit of appointment w.e.f. date of issuance of his appointment order as Class-IV, alongwith all the consequential benefits.

14. The entire exercise shall be completed within eight weeks from the receipt of certified copy of this order.

15. No Order as to cost.

(PRAGYA SAHAY SAKSENA) (RAJINDER SINGH DOGRA)

MEMBER (A) MEMBER (J)

PoojaaSoni/