Accepting Lower Post Under Compulsion Doesn't Bar Legitimate Claims Due To Procedural Lapses In Selection Process: J&K High Court
The Jammu and Kashmir High Court held the petitioner's acceptance of the Constable post as against claim made for Sub-inspector on compassionate grounds did not negate his original claim because it was made after a prolonged struggle and under duress.The petitioner whose father had died in counter-insurgency applied to be appointed as Sub-inspector under SRO 43 on compassionate grounds...
The Jammu and Kashmir High Court held the petitioner's acceptance of the Constable post as against claim made for Sub-inspector on compassionate grounds did not negate his original claim because it was made after a prolonged struggle and under duress.
The petitioner whose father had died in counter-insurgency applied to be appointed as Sub-inspector under SRO 43 on compassionate grounds claiming that his case was not referred to General Administrative Department who was the competent authority to accept such plea.
A bench of Justice Sanjeev Kumar, Justice Mohd Yousuf Wani observed that we are aware that appointment against the post of constable was offered to the petitioner after he has consented for the same but we cannot ignore the attending facts and circumstances which led the petitioner to accept whatever was offered to him at the end of the day.
The respondent had argued that compassionate appointment is a concession, not a matter of right and that the petitioner accepted the post of Constable, and after that could not claim a higher post.
The court observed that the Home Department which had rejected the claim was not competent to do so and the same should have forwarded the case to General Administrative Department (GAD).
The court said that under Rule 3(2), the GAD has discretionary power to appoint eligible persons to higher posts like Sub-Inspector but above claim was not forwarded to it.
The court directed that the entire case file shall be placed before the General Administration Department (GAD) and it shall decide the petitioner's request for appointment as Sub-Inspector considering the recommendations made and similar past cases.
The court directed that the exercise must be completed within a total period of 10 weeks I.e., four weeks for submission of file and six weeks for decision.
BACKGROUND:
The petitioner was the son of a martyred Assistant Sub Inspector who died in militancy-related violence in 2017.
The petitioner sought compassionate appointment as a Sub-Inspector in J&K Police under SRO 43 of 1994.
Initially, the Police Headquarters recommended his case for appointment as Sub-Inspector, but the Home Department returned the file, asking that he be appointed as a Constable instead.
The petitioner accepted appointment as Constable under protest but soon after challenged the action before the Central Administrative Tribunal (CAT), which dismissed his case.
The petitioner then filed this writ petition before the High Court.
APPEARANCE
Z. A. Shah, Sr. Advocate, with A. Hanan, Advocate., Advocate For Petitioner
A. R. Malik, Sr. AAG, with Maha Majid, Assisting Counsel.For Respondents
Case-Title: IRSHAD RASHID SHAH vs UT OF J&K & OTHERS
Citation: 2025 LiveLaw (JKL) 168