AMICUS AI
Citation Codes
Neutral Citations
2013 JKLHC-JMU 10
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
  • sub Rule 1 of Rule 3 of Jammu & Kashmir Compassionate Appointment Rules 1994
  • Jammu & Kashmir Compassionate Appointment Rules 1994 (SRO 43 of 1994),
  • Jammu & Kashmir Compassionate Appointment Rules 1994
  • J&K Compassionate Appointment Rules 1991
  • ARTICLE 14 CONSTITUTION OF INDIA
  • Rule 9 of Rules of 1994, Rules of 1991
  • Sub Rule-1, Rule 3 of Rules of 1994
  • Rule 5 (1) (viii) of the Rules of 1969,
  • Rule 5 (1)(viii) of Rules of 1969
  • Rule 3 (1) of the Rules of 1994.
  • sub Rule 3 (1) of Rules of 1994
  • 1986, Rule 3 of Rules of 1994
  • Rule 5 (1) (viii), Rules of 1969
  • Rule 3 of the Rules of 1994
  • Rule 3(1) of Rules of 1994
  • Rule 9 of Rules of 1994
  • Sub Rule 1 of Rule 3,
  • Rule 1 of Rule 3
  • Rule 5(1) (viii)
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Cites
Cited by
Citation Codes
Neutral Citations
2013 JKLHC-JMU 10
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
  • sub Rule 1 of Rule 3 of Jammu & Kashmir Compassionate Appointment Rules 1994
  • Jammu & Kashmir Compassionate Appointment Rules 1994 (SRO 43 of 1994),
  • Jammu & Kashmir Compassionate Appointment Rules 1994
  • J&K Compassionate Appointment Rules 1991
  • ARTICLE 14 CONSTITUTION OF INDIA
  • Rule 9 of Rules of 1994, Rules of 1991
  • Sub Rule-1, Rule 3 of Rules of 1994
  • Rule 5 (1) (viii) of the Rules of 1969,
  • Rule 5 (1)(viii) of Rules of 1969
  • Rule 3 (1) of the Rules of 1994.
  • sub Rule 3 (1) of Rules of 1994
  • 1986, Rule 3 of Rules of 1994
  • Rule 5 (1) (viii), Rules of 1969
  • Rule 3 of the Rules of 1994
  • Rule 3(1) of Rules of 1994
  • Rule 9 of Rules of 1994
  • Sub Rule 1 of Rule 3,
  • Rule 1 of Rule 3
  • Rule 5(1) (viii)
Smart Summary

Structured Summary of the Opinion (Jammu — Hasnain Massodi, J.)

Factual and Procedural Background

The petitioner, Kumar Shiv Satya Narayan, was born on 7.5.1987, a little more than eight months after the death in harness of his father, Shri Tirath Ram (Accountant, Divisional Forest Officer, Social Forestry Division, Udhampur) on 31.8.1986. The petitioner attained majority on 7.5.2005. After attaining majority he applied (7.10.2005) to the Tehsildar for a dependency certificate, which was issued on 16.10.2006. On 29.12.2006 he applied to the Divisional Forest Officer for appointment on compassionate grounds; the DFO recommended his case and it moved through Deputy Director Accounts and Treasuries and Director Accounts and Treasuries to the General Administration Department, but no substantive decision was communicated.

The petitioner filed this writ petition seeking a mandamus to direct appointment as a Class III employee on compassionate grounds and a writ of certiorari quashing Rule 3 of SRO 43 of 1994 (the Jammu & Kashmir Compassionate Appointment Rules, 1994), on the ground that Rule 3 should not apply to deaths occurring before the Rules of 1994 came into force.

Legal Issues Presented

  1. Whether Sub-Rule (1) of Rule 3 of the Jammu & Kashmir Compassionate Appointment Rules, 1994 (SRO 43 of 1994) — which requires the claimant to acquire eligibility within one year from the date of the deceased employee's death — can be applied to a claimant whose right to be considered for compassionate appointment accrued on the date of death that occurred before the Rules of 1994 came into force (i.e., whether the 1994 Rules operate retrospectively to extinguish such accrued rights).
  2. Whether the petitioner, who was a minor at the time of his father's death and attained majority later, can have his claim considered under the compassionate-appointment rules that were in force on the date of his father's death (specifically Rule 5(1)(viii) of the Jammu & Kashmir Civil Services Rules, 1969), despite the time-limit in Rule 3(1) of the 1994 Rules.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner relied on the compassionate appointment regime in force at the time of his father's death (Rule 5(1)(viii) of the Jammu & Kashmir Civil Services (Decentralisation of and Recruitment to Non-Gazetted Cadres) Rules, 1969), which did not prescribe any time limit for acquiring eligibility; therefore Rule 3 of SRO 43 of 1994 should not block his claim.
  • He pleaded that he obtained the dependency certificate after attaining majority and promptly pursued his claim; thus any delay before attaining majority was due to incapacity (minority) and not culpable delay attributable to him.
  • The petitioner asserted he had the requisite academic/technical qualifications (graduation in science and six months computer application training) and sought appointment on compassionate grounds accordingly.

Respondents' Arguments

  • The respondents contended that Sub-Rule (1) of Rule 3 of the 1994 Rules bars the petitioner because it requires a claimant to acquire eligibility within one year of the date of death; the petitioner did not acquire eligibility within one year after 31.8.1986 (he was a minor and acquired eligibility only much later), and therefore is precluded from claiming benefit under the 1994 Rules.
  • The respondents denied that Rule 3 of the 1994 Rules is discriminatory or violative of Article 14 of the Constitution of India.
  • The respondents did not place on record any formal order rejecting the petitioner's claim nor plead that the General Administration Department had taken a definitive decision refusing appointment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Vijay Kumar v/s State and others (SWP No. 488/1998) Held that Rules of 1994 are not retrospective; dependents are entitled to compassionate appointment as per the policy existing at the time of death; minors are entitled on attaining majority; inquiry limited to whether hardship continues. The court relied on this decision as a leading precedent to support the non-retrospective operation of the 1994 Rules and to hold that the petitioner’s claim must be considered under the rules in force at the time of his father's death.
Gurdeep Singh v/s The Haryana State Electricity Board, 1997 (4) SCT 833 (P&H) Cited in the Vijay Kumar survey (pertaining to non-retrospectivity and entitlement under rules at time of death). Referenced (via Vijay Kumar) as part of the jurisprudential support for treating a claimant's right according to rules existing when death occurred.
Smt. M. Reddamma v/s Andhra Pradesh State Road Transport Corporation, 1997 (3) SCT 86 Cited in the Vijay Kumar survey (on similar principles of entitlement and temporal application of rules). Used by Vijay Kumar (and referenced in this opinion) to support the general principle that new rules cannot extinguish accrued rights in appropriate circumstances.
A. Ksheera Sagar Vs. A.P. Dairy Development Corp. Fed. Ltd., 1997 (3) SCT 515 Cited in the Vijay Kumar survey (on compassionate-appointment jurisprudence). Referenced as part of the body of decisions affirming treatment of claims according to the rules prevailing at the time of death.
Sushma Gosain and ors. Vs. Union of India & ors. (AIR 1989 SC 1976) [as cited] Cited in the Vijay Kumar survey (as part of the jurisprudence dealing with entitlement under earlier rules). Included among precedents relied on by Vijay Kumar to demonstrate that claimants are entitled to protection under rules in force at the time of death.
Saroj vs. State of Haryana and ors., 1997 (1) SCT 229 Cited in the Vijay Kumar survey (on related principles concerning compassionate appointment and temporal application of rules). Referred to through Vijay Kumar’s analysis to support non-retrospective application of new rules.
Dharam Pal vs. Haryana State Electricity Board, 1996 (2) SCT 300 Cited in the Vijay Kumar survey (as part of the case-law background). Used by Vijay Kumar and cited in this opinion as reinforcing the same principle that claimants are to be considered under rules in force at time of death.
Daya Kour v/s Haryana State Electricity Board, 1996 (2) SCT 447 Cited in the Vijay Kumar survey (compassionate appointment jurisprudence). Referenced as part of Vijay Kumar’s survey of authorities supporting the petitioner’s position.
Hakim Singh vs. H.S.E.B. and anr., 1995 (4) SCT 746 (P&H) (1005 (5) SLR 274) Cited in the Vijay Kumar survey (on principles related to compassionate appointments). Included among the authorities relied upon in Vijay Kumar and cited in this judgment for similar propositions.
Tarun Chakaraborty vs. State of West Bengal & ors., 1996 (2) SCT 799 Cited in the Vijay Kumar survey (as part of the jurisprudence considered). Referenced by the court as part of the collected precedents supporting the non-retroactive application of new rules affecting compassionate appointments.
Asif Hamid and ors vs. State of Jammu and Kashmir (AIR 1989 SC 1899) Cited in the Vijay Kumar survey (relating to entitlement and application of compassionate-appointment policy). Referred to via Vijay Kumar as supporting authority for assessing claims under rules in force at the time of death.
Jagdeep Kumar vs. State of Haryana, 1996 (1) SCT 731 Cited in the Vijay Kumar survey (on related principles). Included among cases relied upon in Vijay Kumar and mentioned in this judgment to bolster the legal position taken.
Vishal Sharma vs. Haryana State Electricity Board, 1995 (4) SCT 801 Cited in the Vijay Kumar survey (compassionate appointment jurisprudence). Referred to in the course of reviewing the settled position that entitlement is to be measured by the rules prevailing on the date of death.
Gh. Mohi-ud-Din v/s Union of India and others, 2000 SLJ (1) 1 Demonstrated that a minor at the time of death who attains majority later can have his delay in applying treated as reasonable where hardship continues; appellate court ordered appointment. Cited as a precedent where a delayed claim (due to minority) was held not to be unreasonable and relief was granted; used to support the petitioner’s entitlement upon attaining majority.
Sajad Ahmad Mir v/s State and others, SLJ 2003 (1) 164 Held that Rules of 1994 would not be applicable to pending claims where cause of action accrued earlier; earlier notifications that fixed no limitation cannot be supplemented by later rules imposing limitation. Used by the court to support the proposition that pending claims or claims accruing pre-1994 must be considered under the rules prevailing at the time of death and cannot be defeated by the 1994 Rules.
Kaisar Masood Tramboo v/s State of J&K, 2003 (1) SLJ 1 Addressed whether a person appointed on compassionate grounds with matriculation qualification has a right to be appointed against Class-III posts irrespective of prescribed qualification; held that such appointees must satisfy eligibility criteria including qualification. The court in the present opinion treated this authority as distinguishable and not supportive of the respondents' reliance: Kaisar Masood did not deal with the retrospective application issue and therefore could not be invoked to defeat a claim that accrued before the 1994 Rules.

Court's Reasoning and Analysis

The court proceeded on the undisputed factual foundation: the father died on 31.8.1986; the petitioner was born on 7.5.1987 and was a minor until 7.5.2005; he obtained the dependency certificate on 16.10.2006 and immediately pursued his claim for compassionate appointment. The respondents had not produced any formal order rejecting the claim nor shown that the petitioner had in any way acquiesced or caused delay in prosecuting his rights after attaining majority.

The analysis focused on temporal application of rules. The court identified that Rule 5(1)(viii) of the Jammu & Kashmir Civil Services Rules, 1969 (in force at the time of the father's death) provided for compassionate appointment and did not prescribe any time-limit for acquiring eligibility. By contrast, Sub-Rule (1) of Rule 3 of the 1994 Rules required acquisition of eligibility within one year from the date of death. The legal question was whether the 1994 Rules could be used to extinguish a right that accrued under the 1969 Rules when the death occurred in 1986.

Applying settled legal propositions and precedent, the court held that new rules generally cannot operate retrospectively to extinguish rights that have already accrued under prior rules, provided the claimant has not been guilty of negligence, delay attributable to him, or has not waived the right. The court surveyed and relied on earlier decisions (directly and via the Vijay Kumar judgment) establishing that where entitlement to compassionate appointment accrues on the date of death prior rules govern and a minor claimant who attains majority later may pursue the claim; the court emphasized that the appropriate inquiry in such cases is whether the family continues to suffer hardship that the appointment would mitigate.

The court found that the petitioner was prevented from asserting his right while a minor and promptly pursued his claim upon majority; he neither delayed culpably nor waived his right. Therefore Sub-Rule (1) of Rule 3 of the 1994 Rules could not be pressed into service to defeat his claim. The petitioner’s entitlement was to be considered on the touchstone of Rule 5(1)(viii) of the 1969 Rules, which were operative when the right accrued.

The court also considered the respondents' reliance on Kaisar Masood Tramboo but concluded that the authority was distinguishable because it did not address the retrospective/non-retrospective issue central to the present dispute; its holding related to the need for appointees to satisfy eligibility criteria (including qualification), and thus it could not support the respondents' plea to apply Rule 3(1) of 1994 to extinguish a pre-existing right.

Holding and Implications

Holding: The petition is allowed. The court held that Sub-Rule (1) of Rule 3 of the Jammu & Kashmir Compassionate Appointment Rules, 1994 cannot be applied to defeat the petitioner’s claim which accrued on the date of his father's death in 1986. The respondents are directed to consider the petitioner’s case for compassionate appointment on the touchstone of Rule 5(1)(viii) of the Rules of 1969 and to appoint him against a post in accordance with those Rules. The respondents are to complete the exercise within two months from service of a copy of the judgment.

Implications: The direct consequence is that the petitioner must be considered and, subject to satisfaction of the conditions under Rule 5(1)(viii) of the 1969 Rules, appointed on compassionate grounds within the time directed. The opinion applies established principles that new rules do not ordinarily operate retrospectively to extinguish accrued rights where the claimant was not negligent and had not waived rights; the judgment does not purport to set a novel principle beyond applying those established doctrines to the facts of this case. No broader novel legal precedent was announced beyond the application of settled non‑retrospectivity principles and earlier case law to the facts at hand.

Disposed of. (Hasnain Massodi) Judge — Judgment dated 08/02/2013.

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    Shiv Satya Narayan (Kumar) v. State Of Jk Others

    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. Petitioners 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, petitioners 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 petitioners 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 petitioners 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 petitioners case in this regard. The respondents have neither pleaded nor placed on file any document which would reveal that the petitioners 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 petitioners 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 petitioners 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 petitioners 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/s State and others 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/s The Haryana State Electricity Board 1997 (4) SCT 833 (P&H), Smt. M. Reddamma v/s Andhra Pradesh State Road Transport Corporation , 1997 (3) SCT 86, A.Ksheera Sagar Vs. A.P.Dairy Development Corp. Fed. Ltd. 1997 (3) SCT 515, Sushma Gosain and ors. Vs. Union of India & ors. AIR 1989 SC 1976, Saroj vs. State of Haryana and ors. 1997(1) SCT 229, Dharam Pal vs. Haryana State Electricity Board 1996 (2) SCT 300, Daya Kour v/s Haryana State Electricity Board 1996 (2) SCT 447, Hakim Singh vs. VS. .H.S.E.B and anr. 1995(4) SCT 746 (P&H) 1005 (5) SLR 274, Tarun Chakaraborty vs. State of West Bengal & ors. 1996 (2) SCT 799, Asif Hamid and ors vs. State of Jammu and Kashmir AIR 1989 SC 1899, Jagdeep Kumar vs. State of Haryana 1996 (1) SCT 731,Vishal Sharma vs. Haryana State Electricity Board 1995 (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/s Union of India and others 2000 SLJ (1)1 and Sajad Ahmad Mir v/s State and others SLJ 2003 (1) 164. In Gh. Mohi-ud-Dins 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 Mirs case, the appellant applied for compassionate appointment in September 1991. The case was under consideration when Rules of 1994 came into force. The appellants 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/s State of J&K 2003 (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 petitioners 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.

    (Hasnain Massodi) Judge Jammu G.Nabi P/S 08/02/201 3

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