Per V.K.Jhnji, ACJ:
1. This Letters Patent Appeal is directed against order dated:-09.10.2002 passed by the Learned Single Judge, dismissing, internlia, the writ petition filed by the writ petitioner, namely, the appellant herein, seeking appointment on compassionate grounds to the post of Junior Assistant.
2. In brief, the facts are that the appellant, representing himself to be the adopted son of lale Basliir Ahmad Tramboo, Ex-Head Assistant. Board of School Education, Srinagar, who died in harness on 25.01.1993, was appointed on compassionate grounds to work as Junior Assistant on the verbal instructions of Joint Secretary, Administration, Kashmir Division. He started attending the office from 27th January, 1993. Subsequently, vide order No.390-6 of 1995 dated:-19th September, 1995, issued pursuant to SRO No.43 of 1994 daled:-22nd February. 1994, sanction was accorded to temporary appointment of the appellant as Orderly in the pay scale of Rs.750-940 with effect from the date he reports for duty. The appellant, being aggrieved of the order appointing him to the post of Orderly, filed writ petition, SWPNo.4080/ 1997, praying therein that the order appointing him as Orderly is violative of SRO 43 of 1994 and that he be directed to be appointed as Junior Assistant, la support of his claim, the appellant referred to Rule 3 of the Jammu and Kashmir (Compassionate Appointment) Rules of 1994 (hereinafter referred to as "the Rules'), which provides that an eligible family member specified in Rule 2 thereof may be appointed against a vacancy in the lowest rank of a non-gazetted service having qualification above matriculation, he had already passed the Matriculation and was reading in P.U.C, His submissions was that since, at the time of appointment he was entitled to be appointed on the post of Junior Assistant.
3. Upon notice of the writ petition, the respondents, in their counter, denied that the appellant was entitled to be appointed to the post of Junior Assistant. According to the respondents, in terms of Order No.330-B of 1989 dated:-21.08.1989, issued by the Board, the educational qualification for direct recruitment to the post of Junior Assistant is Graduation with a typing speed of 30 words per minute. According to them, since the appellant did not possess the qualification prescribed for the post of Junior Assistant nor acquired the same before the appointment was offered to him, he was not appointed to the post of Junior Assistant. The learned Single Judge dismissed the writ petition. Hence, the appeal by the writ petitioner.
4. The submission of the Learned Counsel for the appellant is that under Rule 3 of the Rules a person having the qualification above Matriculation has to be given the post of Junior Assistant and that, since the petitioner was a Matriculate, therefore, his appointment to the post of Orderly was violalive of Rule 3 of the Rules and consequently, the same has to be quashed and appellant has to be appointed to the post of Junior Assistant with effect from the date he was asked to work against the said post. According to him, the Learned Single Judge has not taken into account the facts of the case as thirty one cases were decided by a common order but the fact of individual cases were not taken into account. In support of his submission, the Learned counsel has cited Anmolak Singh v/s State of Jammu and Kashmir and Ors, 1998 SLJ 426.
5. On the other hand, learned counsel appearing on behalf of the respondents, cited a Division Bench judgment of this court in Tariq Ahmad Canal v/s State. 2001 SLJ 385 wherein it has been held that a candidate must possess essential eligibility qualification and, if one is not possessing the same, then he cannot be appointed to that post.
6. After hearing learned counsel for the parties and on carefully going through the record of the case, we are of the view that there is not merit in this appeal.
7. Proviso to Sub Rule (1) of Rule 3 of the Rules is complete answer to the submission made by the learned counsel for the appellant. Proviso to Sub Rule (1) of Rule 3 provides as under:-
"Provided that the applicant is eligible and qualified or acquires eligibility and qualification within a period of six months from the date of death of the deceased person specified in Rule 2."
8. A bare perusal of Sub Rule(l) of Rulc3 of the Rules read with the proviso thereto makes it unambiguously clear that a person specified in Rule 2 may be appointed against a vacancy in the lowest rank of a non-gazetted service having qualification above Matriculation provided he is eligible and qualified or acquires eligibility and qualification within six months of the date of death of the deceased.
9. As observed, the qualification prescribed in the Board for appointment to the post of Junior Assistant is Graduation. In Anmolak Singh v/s Slate of Jammu and Kashmir and Others (supra), cited by the learned counsel for the appellant, a Single Bench of this court rule that a person having qualifications above Matriculation is to be given the post of Junior Assistant and above. A reading of the judgment shows that the proviso to Sub-rule (1) of Rule 3 of the Rules escaped the notice of learned Single Judge. In Tariq Ahmad Ganai v/s State (supra) the appellant was appointed to the post of Head Constable, but he sought directions from the court for his appointment as Assistant Sub-Inspector. His contention was rejected as he had passed only 12lh standard whereas the essential eligibility qualification for the post of ASI was graduation. The case of the appellant is similar on facts and law and we have no reason to lake a view different than what has been taken by the Division Bench in Tariq Ahmad Ganai v/s State (supra).
10. Accordingly, this Letters Patent Appeal is dismissed without any order as to costs.
Srinagar: Sd/-
10-06-2003 Hon'ble Judges