JUDGMENT

1. Shri Tirath Ram, Accountant in the office of Divisional Forest Officer, Social Forestry Division Udhampur, died in harness on 31.8.1986 He, on his death left behind, his widow Smt. Tripti Devi and four daughters. Shri Kumar Shiv Satya Narayan - (present petitioner), was born to Tripti Devi on 7.5.1987 i.e a little more than eight months after tragic demise of his father Shri Tirath Ram.

2. The petitioner after attaining majority, approached Tehsildar concerned with an application dated 7.10.2005 for grant of “dependency certificate” in his favour. The certificate was issued by Assistant Commissioner (R) Kathua under No. Misc/1057 on 16.10.2006

3. Petitioner soon after certificate was issued in his favour on 29.12.2006, approached Divisional Forest Officer, Social Forestry Div. Udhampur with an application for his appointment on compassionate grounds. The Divisional Forest Officer, Social Forestry Div. Udhampur vide No. 1022-23.SFD dated 4.1.2007 recommended his case to Dy. Director, Accounts and Treasuries, Jammu who in turn vide No. DDATJ/Adm/2030 dated 26.3.2008 forwarded it to Director Accounts and Treasuries, Finance Department, Civil Secretariat, Jammu.

4. Petitioner's application did not attract due attention of the higher authorities, constraining the petitioner to file one more representation to Deputy Director Accounts and Treasuries for early consideration of his claim. The Deputy Director Accounts and Treasuries again recommended the case to Director Accounts and Treasuries, who in turn submitted it to the General Administration Department of the State Government. The General Administration Department failed to take any action in the matter leaving no option for the petitioner but to approach this Court with the writ petition on hand seeking a writ of mandamus commanding the respondents and in particular Director Accounts and Treasuries, Finance Department, Civil Secretariat to appoint the petitioner as Class III employee on compassionate grounds in the Finance Department or any other Department of the State Government. The petitioner also prays for a writ of certiorari quashing Rule 3 of SRO 43 of 1994.

5. Briefly stated, petitioner's case is that he has done graduation in science and undergone six months training course in computer application and is therefore eligible for appointment against class-III vacancy in the State Government. It is pleaded that petitioner immediately on attaining majority, approached the revenue authorities for grant of necessary certificate so as to enable him to seek benefit under Jammu & Kashmir Compassionate Appointment Rules 1994 and once necessary certificate was issued in his favour he approached respondents for his appointment on compassionate grounds as his father died in harness on 31.8.1986

6. Though the petitioner rests his claim on Jammu & Kashmir Compassionate Appointment Rules 1994 (SRO 43 of 1994), yet his main contention is that as his father breathed his last in 1986, Rule 3 of Rules of 1994 (SRO 43) is not attracted in his case and that in terms of rules in vogue at the time of demise of his father, limitation is not to stand in his way to claim benefit of compassionate appointment. It is in the said background that the petitioner seeks quashment of Rule-3 of Rules of 1994 and a declaration that Rule 3 is not applicable to his case.

7. The respondents in their reply oppose the petitioner's claim, primarily on the ground that sub Rule 1 of Rule 3 of Jammu & Kashmir Compassionate Appointment Rules 1994 stands in the way of the petitioner to seek benefit of compassionate appointment under said Rules. It is pointed out that as a person claiming benefit of the compassionate appointment in terms of Rule 1 of Rule 3 is required to acquire eligibility within a period of one year from the date of death of deceased employee, petitioner cannot claim the benefit of compassionate appointment because he within one year after the death of his father i.e 31.8.198 neither acquired eligibility, as regards qualification nor age. The respondents insist that petitioner is precluded from claiming any benefit under Rules of 1994. The respondents deny that Rule 3 of the Rules of 1994 is in any manner discriminatory in character or in conflict with Article 14 of the Constitution of India.

8. The respondents in their reply however, avoid to take a definite stand as regards consideration of the petitioner's claim. It is nowhere pleaded that a formal order rejecting the petitioner claim was passed by the General Administration Department of the State Government or for that matter any other authority.

9. I have gone through the pleadings and have heard Ld. Counsel for the parties at some length.

10. The facts, crucial to the disposal of the writ petition, are not in dispute. It is admitted case of the parties that Shri Tirath Ram while posted as Accountant in the office of Divisional Forest Officer Udhampur, died in harness on 31.8.1986 and that petitioner was born on 7.5.1987 and attained majority in 7.5.2005 It is also not denied that the petitioner soon after he attained majority, approached the competent Revenue Authority for grant of “Dependency Certificate” in his favour and certificate after necessary inquiry was granted by Assistant Commissioner (R) Kathua on 16.10.2006

11. The record available on the file reveals that the petitioner after requisite certificate was granted in his favour, lost no time in making a representation to Divisional Forest Officer, Social Forestry Division, Udhmpur i.e the office where his father was working on the date of his death, for his appointment on compassionate grounds. The petitioner while making efficient use of time available to him in acquiring academic and technical qualification, continued to pursue his case for his appointment on compassionate grounds. The official record available on file, lends support to the petitioner's case in this regard. The respondents have neither pleaded nor placed on file any document which would reveal that the petitioner's claim was considered at appropriate level, rejected and the decision conveyed to the petitioner. The respondents therefore pushed the petitioner to uncertainty, compelling him to invoke writ jurisdiction of this court.

12. There is no denial of the fact that in terms of Rules of 1994, a person to claim benefit of appointment on compassionate grounds, is to acquire eligibility within one year, from the date of death of the deceased employee, Rule 3(1) of Rules of 1994 may conveniently be pressed into service by the State Government, where death has occurred after Rules of 1994 came into force and the claimant failed to acquire eligibility within one year of the date of death of the employee. However, the question that calls for an answer is whether Rules of 1994 and in particular Sub Rule 1 of Rule 3, would be attracted in a case where death has occurred before Rules of 1994 came into force. In the present case as already stated petitioner's father passed away on 31.8.1986 i.e eight years before Rules of 1994 were made and became applicable. It is therefore required to be examined whether any Rules providing for appointment on compassionate grounds, were in vogue on the date petitioner's father breathed his last.

13. The State Government in the year 1969 made Jammu & Kashmir Civil Services (Decentralisation of and Recruitment to Non-Gazetted Cadres) Rules 1969 notified as SRO 588 on 21.10.1969 The Rules of 1969 made a provision for appointment on compassionate grounds. The provision for compassionate appointments in Rules of 1969 for appointment on compassionate grounds, was followed by J&K Employees (Death in harness) Dependents Rules 1989 notified as SRO 194 of 1989. The Rules of 1989 were replaced by J&K Compassionate Appointment Rules 1991 notified vide SRO 283 of 1991. J&K compassionate Appointment Rules of 1994 notified vide SRO 43 of 1994 repealed the Rules of 1991. The Rules of 1994 presently occupy the field. However, for the present controversy, Rule 5(1)(viii) added by SRO 122 dated 24.3.1983 to the Rules of 1969 needs to be noticed. It reads:

“5(1) i, …….

ii, …….:

viii, A vacancy occurring in a department due to the death of a Government employee in harness may be filled up in accordance with the prescribed rules, subject to the condition that son/adopted son daughter/adopted daughter/wife or dependent sister brother of a deceased government employee is provided employment in the Department on any vacancy in the non gazetted cadre in the lowest rank or against any post for which he/she may be fully qualified:

Provided that:-

(I) the appointing authority shall satisfy itself through personal enquiries or otherwise and after obtaining a report from the concerned Revenue Officer not below the rank of Assistant Commissioner that the grant of concession is justified having regard to the number of dependents left by the deceased Government servant, the assets and liabilities left by him, the income of the earning member(s) if any, and also his liabilities.

(II) In most deserving cases, the concerned Head of the Department may recommend to the competent authority-

(a) for relaxation of his/her age bar not beyond 40 years in the case of upper age limit and by not more than four years in the case of lower age limit.

(b) for relaxation of qualification in the case of posts for which minimum qualification prescribed is Matriculation or its equivalent subject to the condition that the beneficiary at the time of such appointment is not below the level of Middle Standard and that he/she acquires such qualification within a period of not more than two years failing which his/her services shall be terminated;

(c) for grant of suitable scholarship not less than Rs. 100 per month in each caw by the Education Department to the minor children left behind by the deceased Government employee till such time as they pass the Matriculation examination and thereafter be considered for appointment.

(III) Benefit of compassionate appointment shall not be granted to more than one dependent of the deceased Government employee.

(IV) In case of beneficiaries being illiterate, the concerned Head of the Department may consider his/her case for employment on any post defined in Schedule II of J&K CSRs subject to the age limitation prescribed above.

(V) Cases of those beneficiaries who are better qualified but are not in a position to find suitable posts in the Engineering and other technical Departments be considered for appointment against suitable posts in other Departments under the orders of the Chief Minister in co-ordination.

(VI) No benefit will be admissible under this scheme in a case in which the monthly income reported by the Assistant Commissioner exceeds Rs. 1000 per month.

Provided further that the case of compassionate appointment shall be finalised within a period of three months from the date of death of Government employee under the orders of the Minister-in-charge.

14. It follows that at the time of death of Shri Tirath Ram father of the petitioner, Rule 5(1)(viii), Rules of 1969 was in force. In terms of the aforesaid rules right accrued to the petitioner to be considered for appointment on compassionate grounds due to death in harness of his father subject to the conditions laid down in said Rule. The Rule did not prescribe any time limit for acquiring eligibility for employment under the Government.

15. The question arises as to whether in wake of Sub Rule-1, Rule 3 of Rules of 1994 petitioner's right that accrued to him in the year 1987 got extinguished, leaving petitioner without any right to seek benefit of appointment on compassionate grounds. There can be no disagreement that Rules on a subject in force on the date the new set of Rules are directed to come into force are to give way to the new Rules. The Rules of 1994 in terms of Rule 1, are deemed to have come into force from 24th day of September 1991. In terms of Rule 9 of Rules of 1994, Rules of 1991 stand repealed w.e.f the date Rules of 1994 come into force. Proviso to Rule 9 of Rules of 1994 however, saves following categories of cases from the repeal:

a) the action taken, orders issued or appointments made under the rules so repealed: or

b) the revival of such cases as have been decided under the said rules but fall within the ambit of these rules; or

c) the cases whether pending on the commencement of these rules or the cases where death of the person specified in rule 2 occurred due to militancy related action prior to the commencement of these rules.

16. It is well settled law that the new rules cannot operate retrospectively and extinguish right that has accrued under repealed Rules, provided there is not acquiescence on part of claimant under repealed rules and delay in enforcing such right is not attributable to the claimant. In other words if a right accrues to a person under a particular rule(s) and he sleeps over the matter and does not exercise the right by the time the rules are replaced by another set of rules, such person may not be allowed to enforce rights under previous rules after their repeal. However, position would be different where neither the person to whom right accrued under previous rules is guilty of negligence or delay nor has he waived or surrendered such right. In latter case the new set of rules cannot extinguish his right under the repealed rules.

17. The matter came up before this court in Vijay Kumar v. State SWP No. 488/1998. In the aforesaid case, petitioner claim for appointment on compassionate grounds, was opposed on the ground that the claim was barred under Rule 3(1) of the Rules of 1994. The death of the employee had occurred before the Rules of 1994 came into force. The Court allowing the writ petition held that the Rules of 1994 are not retrospective and would govern only the case where death has taken place after 22.2.1994 The court after making extensive survey of law laid down in Gurdeep Singh v. The Haryana State Electricity Board1997 (4) SCT 833 (P&H), Smt. M. Reddamma v. Andhra Pradesh State Road Transport Corporation, 1997 (3) SCT 86, A. Ksheera Sagar v. A.P Dairy Development Corp. Fed. Ltd.1997 (3) SCT 515, Sushma Gosain v. Union of IndiaAIR 1989 SC 1976, Saroj v. State of Haryana1997 (1) SCT 229, Dharam Pal v. Haryana State Electricity Board1996 (2) SCT 300, Daya Kour v. Haryana State Electricity Board1996 (2) SCT 447, Hakim Singh v. H.S.E.B1995 (4) SCT 746 (P&H)1005 (5) SLR 274, Tarun Chakaraborty v. State of West Bengal1996 (2) SCT 799, Asif Hamid v. State of Jammu and KashmirAIR 1989 SC 1899, Jagdeep Kumar v. State of Haryana1996 (1) SCT 731, Vishal Sharma v. Haryana State Electricity Board1995 (4) SCT 801, held that “the dependent of the deceased employee” was entitled to compassionate appointment on the date of death of the employee; that in case the policy of compassionate appointment was changed later, the dependent has a legal right to get appointment as per the policy existing at the time of death”. The Court further held that where person seeking employment, was a minor at the time of the death of the Government employee, he is entitled to compassionate appointment on attaining majority and in such cases the only inquiry required to be made, would be one to find out whether the family of the deceased employee, continues to be in hardship and the compassionate appointment would mitigate such hardship. The matter again surfaced before the court in Gh. Mohi-ud-Din v. Union of India2000 SLJ (1) 1 and Sajad Ahmad Mir v. StateSLJ 2003 (1) 164. In Gh. Mohi-ud-Din's case father of the appellant died on 21.11.1973 and left behind his widow and his minor son - appellant before the court. The appellant was minor at the time of death of his father and attained majority in 1985. He on attaining majority, approached the State Government with a request for his appointment on compassionate grounds. His request was declined, forcing him to invoke writ jurisdiction of the Court. The case however, did not find favour with Ld. Single Judge. The appellate court overset the writ court judgment. It was held that a delay of four years in approaching the State Government for compassionate appointment was not unreasonable or culpable and that as the appellant continued to be in hardship, his claim for compassionate appointment had merit. The respondents accordingly were directed to appoint the appellant - writ petitioner on compassionate grounds. In Sajad Ahmad Mir's case, the appellant applied for compassionate appointment in September 1991. The case was under consideration when Rules of 1994 came into force. The appellant's claim was rejected on the ground that it was untenable under Rules of 1994. The court reiterating that the appellants claim was based on cause of action that had accrued in 1987, was to be considered in terms of rules and regulations prevalent at the time of death of the Government employee. The court held that Rules of 1994 would not be applicable to pending claims and as earlier notifications did not fix any limitation for making application, the appellants' claims could not be rejected on that ground.

18. Mr. Mishra, Ld. Govt. Advocate to rebut the arguments advanced by Ld. Counsel for the petitioner, seeks to place reliance on Kaisar Masood Tramboo v. State of J&K2003 (1) SLJ 1. Ld. Govt. Counsel cannot draw any support from reported case in as-much-as controversy in the case did not relate to right of a person to whom entitlement to compassionate appointment had become due before the Rules of 1994, to get his claim considered on the anvil of rules in force at the time of death of a Government employee and to obviate impediment created Rule 3(1) of the Rules of 1994. The issue before the Court was whether a person with matriculation qualification appointed on compassionate grounds, would have a right to be appointed against Class-III posts irrespective of qualification prescribed for the post. The court held that a person appointed on compassionate grounds would have to satisfy the eligibility criteria including qualification prescribed under the rules, and not insist on his appointment against a post at the bottom of class-III category.

19. In the present case the petitioner, as already pointed out, was born on 7.5.1987 i.e eight months after demise of his father in harness. He attained majority in the year 2005 and approached higher authorities for his compassionate appointment. The petitioner got a right to be considered for compassionate appointment and could not exercise the right because of the incapacity he suffered i.e his minority till he attained majority on 7.5.2005 The delay, if any, on part of the petitioner to agitate and enforce his right, is to be computed from the date he attained majority. In the present case having regard to the facts and events after 7.5.2005, there is no scope for any disagreement that petitioner is not guilty of any delay nor can he be held to have waived or surrendered his right. His claim is to be considered on the touch stone of rules i.e Rule 5(1)(viii) of Rules of 1969 in force on the date the right accrued to him.

20. So viewed, sub Rule 3(1) of Rules of 1994 cannot stand in his way to seek appointment on compassionate grounds.

21. There can be no quarrel, on the legal propositions that compassionate appointment is an effort to help the family of a deceased Government employee, left high and dry and without any source to fall back upon because of sudden demise of its bread earner, to tide over the financial crises to which it is plunged and that once the family on its own has come out of the financial crisis, the benefit of compassionate appointment may not be made available to the family. However, such a question would arise, where any of the family members of the deceased employee though having an opportunity to avail the benefit of compassionate appointment, decided not to avail the benefit and lay the claim for such appointment much after the death of its bread earner. In such a case the Rules of 1994 or the rules on the subject in vogue at the time of death of the Government employee may not come to the rescue of the family. The argument would be that the family is out of crisis and no more deserve a benefit that essentially is extended out of compassion and is a departure from the rules regarding recruitment to the Government service.

22. In the present case, the petitioner, it may be stated at the cost of repetition because of his minority was not competent to project his claim. He set up his claim once he attained majority. The petitioner continues to be unemployed and therefore suffers from a hardship with which he was visited due to untimely and tragic death of his father, that needs to be mitigated by providing him employment on compassionate grounds. The petition, in the said background, deserves to be allowed.

23. For the reasons discussed, the petition is allowed. The respondents are directed to accord consideration to petitioner's case for compassionate appointment on the touch stone of Rule 5(1)(viii) of the Rules of 1969, occupying the field on the date of the death of his father Shri Tirath Ram, Accountant in the office of District Forest Officer, Social Forestry Division, Udhampur and appoint him against a post in accordance with said Rules. The respondents shall complete the exercise within two months from the date copy of this judgement is served on them.

Disposed of.