1 Sr. No. Suppl. List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 13.05.2025 Pronounced on: 16 .05.2025 WP(c) no. 3282/2023 CM No. 7878/2023 Nazir Ahmad Bhat, Aged 47 years S/o Ghulam Mohi-ud-din Bhat, R/o Palhalan, Tehsil Pattan, District Baramulla ...PETITIONER Through: - Mr. R. A. Jan, Sr. Advocate Vs. 1. Union Territory of J&K through Principal Secretary to Govt. Power Development Department, Civil Secretariat, Srinagar/Jammu, Pin Code 190001 2. Managing Director, Kashmir Power Distribution Corporation Ltd (KPDCL) Jahangir Chowk, Srinagar, Pin Code 190001 3. Managing Director, J&K Power Development Corporation Ltd.(JKPTLC) Srinagar/Jammu, Jammu Lottery Building behind Civil Secretariat, Srinagar 190001 4. Chief Engineer, EM&RE Wing Kashmir, Power Distribution Corporation Ltd. (KPDCL), Kashmir Pin Code 190001 …RESPONDENTS Through:- Mr. Mohammad Younis, Assisting Counsel, vice Mr. A. R. Malik, Sr. AAG CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE 2 JUDGMENT Per: Sanjeev Kumar-J 1. This is a petition by one Nazir Ahmad Bhat filed under Article 226 of the Constitution of India to throw a challenge to an order and judgment dated 27.06.2023 passed by the Central Administrative Tribunal, Srinagar Bench [“the Tribunal”] in OA no. 318/2022 titled Nazir Ahmad Bhat v. UT of J&K and others whereby the Tribunal has dismissed the OA filed by the petitioner seeking appointment as Junior Assistant retrospectively from the year 1995. The petitioner has also called in question the order dated 27.09.2023 passed by the Tribunal in Review Application, i.e. RA no. 180/00009/2023 whereby the review petition filed by the petitioner seeking review of the judgment dated 27.06.2023 has been rejected. 2. Briefly put, the facts leading to the filing of this writ petition are that the father of the petitioner, an employee of the Power Development Department, Government of Jammu and Kashmir, died in harness. The petitioner was appointed as Class-IV on compassionate grounds by the Chief Engineer vide order no. CE/M&RE/11/CE dated 03.05.1995. The appointment of the petitioner was obviously under SRO 43 of 1994. The petitioner was possessing qualification of 10+2 at the relevant time. He accepted the appointment and joined his post as Class-IV. By dint of his merit and seniority, the petitioner came to be promoted to the post of Junior Assistant on 16.12.2010. It is at this stage, the petitioner agitated his right to be appointed as Junior Assistant with effect from 03.05.1995, that is the date he was initially appointed as Class-IV on compassionate grounds. The petitioner started making representations, but when no action was taken by the respondents, the petitioner filed OA no. 62/1226/2021 before the Tribunal which was disposed of vide order dated 13.08.2021 directing the respondents to consider and take a decision on the representation 3 of the petitioner by passing a reasoned and speaking order within a period of two months. 3. In compliance with the aforesaid order of the Tribunal the Chief Engineer (Distribution), JKPDCL passed a speaking order on 24.03.2022. The speaking order of consideration dated 24.03.2022 was assailed by the petitioner in OA no. 318/2022 which has been dismissed by the Tribunal vide impugned judgment dated 27.06.2023. The claim of the petitioner to be appointed as Junior Assistant retrospectively from the year 1995 has not been acceded to by the Tribunal. The petitioner also filed a review petition for seeking recall of the judgment dated 27.06.2023 (supra) but the same was also found to be devoid of any merit and rejected by the Tribunal. Both, the judgment passed in the OA and the order passed in the review petition are subject matter of challenge in this petition. 4. The challenge to the judgment and order impugned is made by the petitioner primarily on the following grounds;- (a) that the Tribunal has not appreciated the fact that in the past persons similarly situated with the petitioner had been adjusted against the higher post of Junior Assistant, that too, with retrospective effect; (b) that the Tribunal has also failed to appreciate that the petitioner, who at the time of death of his father was 10+2, was entitled to be appointed against the lowest post in the Gazetted cadre of the department of Power Development; (c) that the Tribunal also failed to appreciate that there was error apparent on the face of record, in that, the Tribunal had failed to consider the case of the petitioner in proper perspective, more particularly having regard to the fact that there were similarly situated persons in the past appointed against the higher post with retrospective effect.” 4 5. Having heard learned counsel for the parties and perused the record, we are of the opinion that the judgment passed by the Tribunal is legally correct and does not call for any interference by us in writ proceedings under Article 226 of the Constitution of India. Admittedly, on the death of his father, the petitioner was offered appointment against the Class-IV post on compassionate grounds. This offer of appointment made to the petitioner was under SRO 43 of 1994. The petitioner was 10+2 and did not hold the eligibility qualification for appointment as Junior Assistant in the Department of Power Development. 6. Be that as it may, the fact remains that the petitioner accepted his appointment as Class-IV on 03.05.1995 when he joined his services in the Department. The petitioner did not raise any protest before the respondents nor did he agitate his appointment before any competent court of law. He continued for almost fifteen years. He got promoted to the post of Junior Assistant in the year 2010. He even accepted his promotion as Junior Assistant which he had earned by dint of his merit and seniority. He came up before the respondents and sought his promotion as Junior Assistant retrospectively with effect from 03.05.1995 by making a representation for the first time in the year 2013, i.e. after about eighteen years. By the time he approached the respondents to seek his appointment as Junior Assistant instead of Class-IV, he had already been granted regular promotion to the post of Junior Assistant in the year 2010. 7. It is a trite law that when a right stands consummated, no further or second consideration can be accorded. In the instant case, with the acceptance of appointment as Class-IV employee, the right of the petitioner to be considered for the appointment on compassionate grounds stood consummated. No further consideration on compassionate ground would ever arise. As is held by the Hon’ble Supreme Court in the Case of State of 5 Rajasthan v. Umrao Singh, (1994) 6 SCC 560 that in the case of compassionate appointments, there cannot be ‘endless compassion’. The underlying object of compassionate appointment offered to the dependants of a deceased employee dying in harness is to enable the distressed family to tide over the financial crisis it plunges into because of untimely demise of the bread winner of the family. Once the compassionate appointment is offered and the same is accepted, the right to be considered for appointment under compassionate grounds gets consumed. There is no reason to further consider or accord fresh consideration against the higher post. Otherwise also, the petitioner who was 10+2 at the relevant time was not eligible to be appointed as Junior Assistant and, therefore, was rightly offered the appointment against the Class-IV post. 8. The plea of the petitioner that in the past some persons similarly situated with the petitioner were offered appointment against the higher post, that too retrospectively, is also devoid of any merit. Needless to say that the concept of equality enshrined in Article 14 of the Constitution of India is a concept clothed in positivity based on law. The equality envisaged under Article 14 cannot be invoked to perpetuate a wrong done in the past. A three Judge Bench of Hon’ble Supreme Court in the case of Tinku v. State of Haryana and others, Civil Appeal no. 8540/2024: 2024 INSC 867 decided on 13.11.2024 has in paragraphs 11 and 12 held as under: “11. The very idea of equality enshrined in Article 14 is a concept clothed in positivity based on law. It can be invoked to enforce a claim having sanctity of law. No direction can, therefore, be issued mandating the State to perpetuate any illegality or irregularity committed in favour of a person, an individual, or even a group of individuals which is contrary to the policy or instructions applicable. Similarly, passing of an illegal order wrongfully conferring some right or claim on someone does not entitle a similar claim to be put forth before a 6 court nor would court be bound to accept such plea. The court will not compel the authority to repeat that illegality over again. If such claims are entertained and directions issued, that would not only be against the tenets of the justice but would negate its ethos resulting in the law being a casuality culminating in anarchy and lawlessness. The court cannot ignore the law, nor can it overlook the same to confer a right or a claim that does not have legal sanction. Equity cannot be extended, and that too negative to confer a benefit or advantage without legal basis or justification. 12. As regards the compassionate appointment being sought to be claimed as a vested right for appointment, suffice it to say that the said right is not a condition of service of an employee who dies in harness, which must be given to the dependent without any kind of scrutiny or undertaking a process of selection. It is an appointment of the various parameters as laid down with an intention to help a family out of a sudden pecuniary financial destitution to help it get out of the emerging urgent situation where the sole bread earner has expired, leaving them helpless and may be penniless. Compassionate appointment is, therefore, provided to bail out a family of the deceased employee facing extreme financial difficulty and but for the employment, the family will not be able to meet the crisis. This shall in any case be subject to the claimant fulfilling the requirements as laid down in the policy, instructions, or rules for such a compassionate appointment.” 9. In view of the aforesaid discussion and the clear legal position emerging from the judgments of Hon’ble Supreme Court, we do not find the claim of the petitioner to be appointed against the higher post of Junior Assistant, that too retrospectively with effect from 03.05.1995, tenable in law. The petitioner cannot claim his appointment against the post of Junior Assistant retrospectively with effect from the year 1995 as a matter of right, more particularly when the appointment against the Class-IV post offered to him stood accepted and acted upon by him in the year 1995. The petitioner made first representation in the year 2013. The equality is a positive concept which cannot be enforced in a negative 7 manner, more particularly when it is tantamount to perpetuating a wrong done in the past. 10. For the foregoing reasons, we find no merit in this petition. The same is, accordingly, dismissed. (SANJAY PARIHAR) (SANJEEV KUMAR) JUDGE JUDGE Srinagar, 16. 05.2025 Yasmeen, Secy. Whether judgment is reportable: Yes/No