Excelsior Correspondent
SRINAGAR, Oct 30: The High Court, in a significant decision, has ruled that accepting lower post under compassionate appointment does not bar the appointee for claiming higher post keeping in view of qualification.
The Division Bench of 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, when the appointee has requisite qualification for the higher post.
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The bench dismissed the plea filed by the Government through Commissioner/ Secretaries GAD and Jal Shakti Department challenging the judgment of Tribunal, whereby the tribunal directed the Government to appoint the applicant as Junior Engineer (Mechanical) on compassionate grounds instead of Fitter keeping in view of his qualification.
The applicant after appointment on the post of fitter on compassionate ground immediately challenged the said appointment before CAT who possessed the requisite qualification for higher post in the department.
The Tribunal allowed the plea of applicant seeking his appointment on suitable post in view of his qualification and the tribunal directed the Government to appoint him as Junior Engineer (Mechanical) on compassionate grounds with effect from the day he was initially appointed as Fitter.
Tribunal further directed the authorities to grant him the notional seniority from the date but not any back wages. Aggrieved by the said decision of the Tribunal, the Government challenged the same before the High Court.
The crux of the matter is that the father of the applicant was working as an Executive Engineer in the Public Health Engineering (PHE) Department and died while in service on 17.09.2020. Thereafter the applicant as son of deceased applied for compassionate appointment as a Junior Engineer (Mechanical) under SRO 43 of 1994.
He relied on his B.Tech qualification. The department recommended his appointment to the General Administration Department (GAD). However, the GAD returned the file, with the finding that the applicant should be accommodated in the lowest non-gazetted post.
Therefore, the department appointed him to the post of Fitter. The applicant joined the post due to financial hardship. Later he challenged the appointment before the Central Administrative Tribunal.
The Government challenged the CAT judgment on the ground that the applicant had accepted the post of Fitter by joining in the year 2021 as such his claim for higher post cannot be accepted.
The applicant counsel, however, rebutted that the applicant accepted the Fitter’s post under SRO 43 of 1994 due to severe financial hardship and had no option but to accept the post offered to him to support his family.
The court upheld the decision of CAT by observing that the applicant challenged the appointment within 12 days and 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.
The court clarified that while implementing the judgment of the Tribunal and offering appointment to the applicant on higher post, it shall be open to the department to verify his qualification and other eligibility conditions of the applicant for such appointment.
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