The High Court of Jammu & Kashmir and Ladakh, in a significant ruling, clarified the scope and discretion under Rule 3 of the Jammu and Kashmir (Compassionate Appointment) Rules, 1994. A Division Bench comprising Justice Sanjeev Kumar and Justice Mohammad Yousuf Wani held that Rule 3(2) provides exceptional discretionary power to the General Administration Department (GAD) to appoint eligible dependents of deceased employees to higher non-gazetted posts, such as Sub-Inspector, provided they meet the necessary qualifications.
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This ruling came in the case of Irshad Rashid Shah, son of a martyred Assistant Sub Inspector who was killed in a militant attack on August 28, 2017. Shah initially applied for a compassionate appointment under SRO 43 and, based on his then-undergraduate qualification, was recommended for the post of Constable in 2021 under Rule 3(1).
Despite initially accepting the lower post, Shah reapplied after completing his graduation in 2020, seeking the post of Sub-Inspector on grounds of parity with similarly situated individuals who had previously been appointed to higher posts under similar conditions.
The Police Headquarters (PHQ) supported his request, classifying it as a militancy-related case, and recommended his appointment as Sub-Inspector to the Home Department. However, the Home Department returned the case, directing that it be considered under Rule 3(1), which resulted in Shah being offered the Constable post.
Shah then approached the Central Administrative Tribunal (CAT), which dismissed his plea, stating that he had accepted the lower post and that the higher appointment could not be claimed as a matter of right.
Upon appeal, the High Court extensively analyzed Rule 3(1) and Rule 3(2), emphasizing the statutory structure:
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“Rule 3(1) is a general provision for offering appointments in the lowest non-gazetted posts, while Rule 3(2) reserves discretionary powers for the Government in the General Administration Department to appoint to higher non-gazetted posts in exceptional cases.”
The court noted a serious procedural lapse, stating:
“The Home Department had no jurisdiction under Rule 3(2) to approve or reject the recommendation for appointment to a higher post. This authority lies solely with the GAD.”
Further, the judgment highlighted:
“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 bench clarified that while compassionate appointments are concessions and not rights, they must follow proper procedures. Since Shah had graduated and fulfilled the eligibility for Sub-Inspector, his case should have been properly considered by the competent authority—the GAD, not the Home Department.
On the argument that Shah had accepted the Constable post, the court stated:
“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.”
Ultimately, the High Court set aside the CAT’s order and directed:
- The entire file, including the DGP's recommendation, must be forwarded to the General Administration Department within four weeks.
- The GAD shall take a final decision under Rule 3(2) within six weeks after receiving the file.
The court also clarified:
“If the Government decides to offer appointment to the petitioner against the post of Sub-Inspector, the same shall be prospective in nature.”
This judgment reiterates the importance of adhering to statutory rules and correct procedural channels in compassionate appointment cases, especially when discretionary powers are involved.
Case Title: Irshad Rashid Shah Vs UT Of J&K
