ORDER :

Dhiraj Singh Thakur, J.

1. The present Letters Patent Appeal has been preferred against the judgement and order dated 24.12.2019, whereby the claim of the petitioner/appellant herein for benefit of appointment against the higher post in terms of Jammu and Kashmir (Compassionate Appointment) Rules, 1994, promulgated vide SRO-43 dated 2nd of February, 1994 has been rejected.

Briefly stated, the material facts are as under:

2. Petitioner’s father, who was working as Senior Assistant in the Animal & Sheep Husbandry Department, died in harness in the year 2013. The petitioner being eligible applied for compassionate appointment in terms of SRO-43. The application submitted by the petitioner, keeping in view his own qualification was for appointment as a Veterinary Pharmacist, which was not agreed to by the official respondents in view of the fact that the rules did not permit the appointment as such. He was, therefore, asked to apply for the post of Junior Assistant vide communication dated 23.02.2015. The petitioner then applied afresh and was asked to appear in a type-test. As per the standards fixed by the official respondents, the minimum speed required was 35 words per minute as against the speed of 20 words per minute, which was achieved by the petitioner.

3. The petitioner, however, as a measure of indulgence, was offered another opportunity to clear the type-test which was conducted on 04.06.2015, which the petitioner/appellant herein says that he was unable to take on account of his hospitalization.

4. in view of the fact that he was placing reliance upon Rule 3 of SRO-43, which for purposes of reference is reproduced hereunder:-

“3- Appointment under these rules-(1) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or post under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of non-gazetted service or Class-IV post having qualification as prescribed under the relevant Recruitment Rules.

Provided that the applicant is eligible and qualified for such post or acquires such eligibility and qualification within a period of one year from the date of death of the deceased person specified in rule 2:

Provided further that no application for compassionate appointment under these rules shall be entertained after the expiry of one year from the date of death of the deceased person.”

5. Thereafter, not being satisfied with his appointment, the petitioner yet again filed representation dated 04.08.2015, seeking another opportunity for sitting in the type-test. Having failed to elicit any response on the said representation, the petitioner filed writ petition bearing SWP No. 921/2018, which was disposed of vide judgement and order dated 29.05.2018 with a direction to the official respondents to consider the case of the petitioner and to take a final decision on the representation made by him.

6. A detailed order of consideration dated 12.09.2019 came to be passed by the Principal Secretary to Government, Animal/Sheep Husbandry Department, in which the basis for rejection was the failure of the petitioner to qualify the type-test and further that the petitioner had accepted the Class-IV post, therefore, could not claim higher post as a matter of right. This order of consideration was, therefore, challenged by the petitioner before the writ Court in WP(C) No. 4370/2019, which too came to be dismissed vide judgement and order impugned in the present Letters Patent Appeal.

7. Learned counsel for the appellant urged that the view expressed by the writ Court in dismissing the petition and upholding the order of rejection was contrary to the spirit of SRO-43 and the various judgments on the point. It was urged that the petitioner did have a right to get appointed against the post of Junior Assistant in view of his qualification and the spirit of Rule 3 of SRO-43, inasmuch as, he