The Jammu and Kashmir High Court, in a landmark decision, ruled that accepting a lower post under compulsion doesn’t negate an individual's legitimate claims for a higher post, especially when procedural lapses have occurred during the selection process.
The petitioner, who lost his father in a counter-insurgency operation, had applied for a compassionate appointment as a Sub-Inspector under SRO 43 of 1994. This policy provides for appointments on compassionate grounds for those who have lost their family members due to militancy or other violent incidents. The petitioner argued that his case was not properly referred to the General Administrative Department (GAD), which is the competent authority for such appointments.
A bench of Justice Sanjeev Kumar and Justice Mohd Yousuf Wani examined the case and noted that while the petitioner did accept a Constable post after prolonged struggles and under pressure, this did not cancel his original claim for a higher position.
The court acknowledged that the respondent had argued that compassionate appointments are a concession, not a right. It was further stated that the petitioner’s acceptance of the Constable post should prevent any further claims for a higher post. However, the court took a different view.
"We are aware that the appointment against the post of Constable was offered to the petitioner after he 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."
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The court pointed out that the Home Department’s rejection of the claim for a Sub-Inspector post was invalid since they lacked the authority to make such a decision. According to the rules, the case should have been forwarded to the GAD for consideration.
"The Home Department, which rejected the claim, was not competent to do so and should have forwarded the case to the General Administrative Department (GAD)."
The GAD has discretionary powers to appoint individuals to higher posts such as Sub-Inspector. Since the Home Department did not forward the petitioner’s claim to the GAD, the court directed that the entire case file be placed before them. The GAD was instructed to review the petitioner’s request and make a decision based on past similar cases and recommendations.
The High Court further directed that the GAD complete the review process within a strict timeline: four weeks for submission of the case file and six weeks for making a decision.
Background of the Case
The petitioner’s father, an Assistant Sub-Inspector, was killed in militancy-related violence in 2017. After his father's death, the petitioner applied for a compassionate appointment as a Sub-Inspector in the Jammu and Kashmir Police. His case was initially recommended for a Sub-Inspector position by the Police Headquarters. However, the Home Department rejected this recommendation, opting to appoint the petitioner as a Constable instead. Though the petitioner accepted the Constable post under protest, he soon challenged the decision before the Central Administrative Tribunal (CAT), which dismissed his case. The petitioner then took the matter to the J&K High Court.
