J&K Compassionate Appointment Rules | Rule 3(2) Extends Discretion To Govt To Appoint Dependents To Higher Posts: High Court

Shedding light on the the statutory structure of compassionate appointments under SRO 43 of Jammu and Kashmir (Compassionate Appointment) Rules, 1994, the High Court of Jammu and Kashmir and Ladakh has held that Rule 3(1) is a general provision for offering appointments in the lowest non-gazetted posts, while Rule 3(2) confers exclusive discretionary power upon the Government in the General Administration Department (GAD) to appoint an eligible family member of a deceased employee to a higher non-gazetted post based on merit and recruitment rules.This discretionary power, the Court emphasized, is exceptional in nature and must be exercised only in appropriate cases, with reasons recorded, the court added. This pivotal observation came from a Division Bench comprising Justice Sanjeev Kumar and Justice Mohammad Yousuf Wani, which directed reconsideration of the petitioner's claim for appointment as a Sub-Inspector, rejecting the earlier dismissal by the Central Administrative Tribunal (CAT).The petitioner, Irshad Rashid Shah, son of slain Assistant Sub Inspector who was martyred by militants on August 28, 2017, had applied for compassionate appointment under SRO 43 of 1994. Initially being an under-graduate, he was recommended for appointment as a Constable in 2021, a post commensurate with his qualification at that time under Rule 3(1) of the Rules. He reluctantly consented to the same, but after graduating in 2020, he pursued his case afresh, claiming parity with similarly situated individuals who had previously been appointed as Sub-Inspectors under similar circumstances.The Police Headquarters (PHQ), recognizing the petitioner's case as militancy-related, recommended his appointment as Sub-Inspector to the Department of Home. However, the Home Department returned the file, advising that the case be processed under Rule 3(1) resulting in the petitioner being offered the lower post of Constable. Dissatisfied, Shah approached the CAT seeking elevation, but his plea was dismissed.Setting aside the Tribunal's reasoning, the High Court undertook an in depth analysis of Rules 3(1) and 3(2) which continued to apply post-reorganization until replaced by the 2022 Rehabilitation Assistance Scheme.The Court held that Rule 3(1) is meant for routine appointments in the lowest rung of non-gazetted services or Class-IV posts, strictly based on the qualification of the dependent family member. However, the true discretion lies in Rule 3(2), which empowers the Government in the General Administration Department alone to appoint a dependent to a higher non-gazetted post, if such person meets the required eligibility under relevant recruitment rules, the bench explained. The Bench underscored, “This power conferred or reserved in Government is discretionary in nature and may be exercised in appropriate cases, either suo-moto or on the recommendations of the authority competent to make compassionate appointment under sub-rule (1)... “Whether exercised suo-moto or otherwise, it must be only in exceptional cases and reasons must be given for the exercise of this power.”The Court found serious procedural lapses in the treatment of the petitioner's case. The Home Department, it noted, had no jurisdiction under Rule 3(2) to either approve or reject the recommendation for appointment to a higher post. That authority rested solely with the GAD, and the Home Department ought to have forwarded the file to it rather than returning it to PHQ, the court stated and remarked, “This process was, seemingly, not followed and the ostensible reason, as we can see, could not only be total non-application of mind on the part of the respondents but also a poor understanding of the provisions contained in the Rules of 1994”The Court acknowledged that the petitioner had initially applied while under-qualified, but by the time the recommendation was made, he had obtained a graduation degree and met all eligibility criteria for the post of Sub-Inspector. His case was supported by the DGP, particularly because it involved militancy-related death, a category explicitly covered by Rule 2, the court stated. Rejecting the ground on which the Tribunal had dismissed his plea that he had already accepted the Constable post, the High Court reasoned, “We cannot ignore the attending facts and circumstances which led the petitioner to accept whatever was offered… he relentlessly followed his case... and did not waste much time after his appointment as Constable to seek justice.”In view of these findings, the High Court set aside the CAT's judgment and directed that the entire file of the petitioner, including the DGP's recommendation be forwarded to the GAD within four weeks. The General Administration Department shall take a final decision under Rule 3(2) within six weeks of receiving the file, the court concluded. Case Title: Irshad Rashid Shah Vs UT Of J&K Citation: 2025 LiveLaw (JKL) 171Click Here To Read/Download Judgment

J&K Compassionate Appointment Rules | Rule 3(2) Extends Discretion To Govt To Appoint Dependents To Higher Posts: High Court

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