Compassionate Appointment, Acceptance Of Lower Post Under Financial Distress Doesn't Bar claim For Higher : J&K HC

A Division bench of the J&K HC comprising Justice Sanjeev Kumar and Justice Sanjay Parihar held that the principle of estoppel does not apply when a compassionate appointment to a lower post is accepted under financial duress and immediately challenged by the applicant who possessed the requisite qualifications. Background Facts The applicant's father was working as an Executive Engineer in the Public Health Engineering (PHE) Department. He died while in service on 17.09.2020. Therefore the applicant applied for compassionate appointment as a Junior Engineer (Mechanical) under SRO 43 of 1994. He relied on his B.Tech qualification. The Public Health Engineering Department supported his claim. The Chief Engineer recommended his appointment to the General Administration Department (GAD). However the GAD returned the file, directing that the applicant should be accommodated in the lowest non-gazetted post. Therefore, the department appointed him on the post of Fitter. The applicant joined the post due to financial hardship. Later he challenged the appointment before the Central Administrative Tribunal, Jammu after 12 days. The Tribunal allowed the applicant's claim and directed the Union Territory of Jammu and Kashmir to appoint the applicant as Junior Engineer (Mechanical) on compassionate grounds with effect from the day he was initially appointed as Fitter. The applicant was also granted the notional seniority from the date but was not entitled to any back wages. Aggrieved by the same, the decision of the Tribunal was challenged by the Union Territory of Jammu and Kashmir through a writ petition. It was argued by the Union Territory of Jammu and Kashmir that the applicant had accepted the post of Fitter by joining on 24 June 2021, later he could not be permitted to turn around and claim that he was entitled to be appointed against the higher post of Junior Engineer. On the other hand, it was submitted by the respondent that he accepted the Fitter's post because he faced severe financial hardship and had no option but to accept the post offered to him to support his family. He was the only earning member of the family after death of his father. He challenged the appointment before the Tribunal just twelve days later. It was further contended that other similarly qualified candidates were granted the same benefit under the Rule 3(2) of SRO 43 of 1994. Findings of the Court The plea of estoppel raised by the authorities was rejected by the court. It was noted that the applicant had accepted the post of Fitter only due to financial compulsion after his father's death. It was observed that he challenged the appointment within twelve days. It was found that the applicant was not differently situated from other candidates who had been appointed as Junior Engineers under Rule 3(2) of SRO 43 of 1994. The provision gives the Government discretion to grant higher appointments but it must be exercised suo-moto or otherwise, it must be only in exceptional cases and competent authority must spell out reasons for exercise of this power. It was observed that the authorities failed to produce any material showing that the respondent's case differed from others who were appointed as Junior Engineers despite being similarly qualified. Hence, the Tribunal's decision directing applicant's appointment as Junior Engineer (Mechanical) was upheld by the court. However, the administration was allowed to verify the applicant's eligibility and qualifications for appointment. With the aforesaid observations, the petition filed by the Union Territory of Jammu and Kashmir was dismissed by the court. Case Name : Union Territory of Jammu & Kashmir & Others v. Bhavtej Singh Isher Case No. : WP(C) No. 2785/2024 Counsel for the Petitioners : Monika Kohli, Sr. AAG Counsel for the Respondent : Farhan Mirza, AdvocateClick Here To Read/Download The Order

Compassionate Appointment, Acceptance Of Lower Post Under Financial Distress Doesn't Bar claim For Higher : J&K HC

Namdev Singh

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